
ass 



honk 



i-iv'i M \ ii:d r.v 



THE GOVERNMENT OF THE UNITED STATES 



THE GOVERNMENT 



OF 



THE UNITED STATES 



BY 

W. J. COCKER, A.M. 



" Freedom and free institutions cannot long be 
maintained by any people who do not understand 
the nature of their ovrn government" 



NEW YORK 
HARPER & BROTHERS, FRANKLIN SQUARE 

18 90 



7\< 2~?\ 



Copyright, 1889, by Harper & Brothers. 



All rights reserved. 



PREFACE. 



In the preparation of this text-book for public 
schools, the author has aimed to present, as clearly 
and concisely as possible, the influences and con- 
ditions that rendered our present Constitution a 
necessity, and to describe, as fully as the limited 
character of a text-book of this kind will permit, 
the powers and limitations of our form of govern- 
ment. After briefly referring to the principles of 
government, the relations of the early colonies to 
the mother country and to each other are described, 
and the causes which led to occasional leagues for 
defence, and afterwards to a union of all the colo- 
nies in the War of Independence. The defects of 
the Confederation are pointed out, and the causes 
which necessitated a firmer union of the States, 
together Avith the difficulties encountered in form- 
ing a Constitution that would be acceptable to the 
several States. The adoption of the Constitution 
naturally follows. The provisions of the Constitu- 
tion are then commented upon, the subject being 
compressed into as narrow limits as its importance 
will permit. 

No effort is made to describe the State govern- 
ments. The States differ so much in the number 



vi PREFACE. 

and duties of their officers, in their laws, and in the 
management of their civil affairs, that it is impos- 
sible, in a few pages as a supplement to an element- 
ary work on the national government, to describe 
satisfactorily the peculiarities of the local State 
governments. The federal Constitution is a sub- 
ject so ample in its scope and so suggestive in 
its provisions that it is almost a presumption to 
attempt to treat it as it merits, within the allotted 
space of a single text-book. 

In compiling material for this work, the author 
is especially indebted to Cooley's " Principles of 
Constitutional Law," Story's " Commentaries on 
the Constitution," Curtis's "History of the Con- 
stitution," Yon Hoist's " Constitutional Law of 
the United States," and Pomeroy's " Constitutional 
Law." For valuable suggestions, the author is 
greatly indebted to Professor Kichard Hudson, 
Professor of History in the University of Michigan. 
Other authorities have been made use of, reference 
being freely made to such throughout the work. 
The references to numerous authors and the quo- 
tations from the best authorities will suggest a 
means of more extensive reading and research to 
those desiring additional information. 

W. J. Cocker. 
Adrian, Mich., December, 1888. 



CONTENTS. 



CHAPTER PAGE 

PRINCIPLES OF GOVERNMENT. 

I. On Government 3 

GROWTH OF NATIONAL AUTHORITY. 

II. The American Colonies 21 

III. Causes that Led to the American Revolution. 27 

IV, The Confederation 33 

V. Constitutional Government - 42 

THE GOVERNMENT UNDER THE CONSTITUTION. 

VI. The Constitution 55 

VII. The Legislative Department 64 

The House of Representatives 66 

The Senate 73 

Relating to Both Houses 75 

VIII. The Organization of Congress and the Priv- 
ileges op Members 80 

IX. Congress at Work 90 

X. The Powers of Congress 102 

Taxes and the Public Dept 103 

Commerce 106 

Naturalization Ill 

Post-Offices and Post-Roads 113 

Patents and Copyrights 114 

Relating to Justice 118 

Relating to War and Military Affairs . . . 123 

1. Declaration and Conduct of War . . 123 

2. The Regular Army and Navy . . . 125 

3. The State Militia 127 



viii CONTENTS. 

CHAPTER PAGE 

Ceded Districts 128 

Powers Implied 129 

XI. Restrictions upon the Powers of Congress. 131 
Restrictions upon Commercial and Revenue 

Powers 132 

Limitations upon the General Authority of 

Congress 135 

XII. The States and Territories . . . . . . 142 

XIII. Tiie Executive Department 159 

XIV. The Powers of the President 169 

The Execution of the Laws 170 

The Appointment of Officers 175 

Power over the Army and Navy .... 178 

The Pardoning Power 179 

Foreign Relations. 180 

Relation of the President to Congress. . . 186 

XV. The Judicial Department 187 

XVI. The Powers of the Federal Courts . . . 192 

Cases in which Federal Law is Involved. . 193 
Cases in which State Courts are not Likely 

to Act with Impartiality 196 

Jurisdiction of the Several Courts .... 198 

XVII. Checks and Balances of the Federal System 203 

XVIII. Rights and Privileges 213 

Constitution of the United States 245 

Index 269 



"What constitutes a state? 
Not high-raised battlement or labored mound, 

Thick wall or moated gate ; 
Not cities proud with spires and turrets crowned ; 

Not bays and broad-armed ports, 
Where, laughing at the storm, rich navies ride ; 

Nor starred and spangled courts, 
Where low-browed baseness wafts perfume to pride. 

No : men — high-minded men, 
With powers as far above dull brutes endued 

In forest, brake, or den, 
As beasts excel cold rocks and brambles rude ; 

Men, who their duties know, 
But know their rights, and, knowing, dare maintain. ' 

Sir William Jones. 



PRINCIPLES OF GOVERNMENT 



CHAPTER I. 

ON GOVERNMENT. 

Government Defined. — The word government is de- 
rived from a Latin word {giibernare) meaning to 
steer, direct, control, and is usually defined as con- 
trol. Mere control, however, does not constitute 
government. Something more is needful. Gov- 
ernment is, more properly, control exercised with 
a view to the maintenance of order. In a political 
sense, government is the ruling power in a political 
society. 

Civil Government. — When we speak of school gov- 
ernment, we mean the control exercised by the 
teacher over the scholars. Church government is 
the control which the church exercises over its 
members. Civil government is the control exer- 
cised by the state over its citizens. So all govern- 
ment, whether relating to the school, the church, 
the family, or the state, includes the idea of a con- 
trolling and regulating power. 

Necessity of Government. — It is impossible for any 
number of persons to dwell peaceably together for 
any length of time, without adopting certain regu- 
lations for their mutual guidance. If each member 
of a community were at liberty to act without any 
reference whatever to the rights or interests of 
others, lawlessness and anarchy would reign su- 



4 THE GOVERNMENT OF THE UNITED STATES. 

preme. Self-interest, the tendency of the strong 
to tyrannize over the weak, the violence and injus- 
tice which at times prevail, render it necessary 
that there should be some power strong enough to 
administer justice, and to promote the happiness 
and welfare of all. 

1. " No society can exist a week, no, not even an hour, with- 
out a government." — Guizot, " History of Civilization," vol. i., 
p. 108. 

2. " Men knew that strifes and troubles would be endless 
except they gave their common consent, all to be ordered by 
some whom they should agree upon." — Hooker's " Works,' r 
vol. i., p. 187. 

Forms of Government. — All the various forms of 
government may be reduced to three classes : 

1. The monarchical, or government by one 

person ; 

2. The aristocratic, or government by a few 

privileged persons ; 

3. The democratic, or government by all. 

It is not to be supposed that each government is a 
pure and simple monarchy or aristocracy or de- 
mocracy, the three forms being frequently found 
together ; but, in a general sense, every form of 
government may be arranged under one of these 
three divisions, according to its predominating feat- 
ure. It may, however, be more convenient to 
divide governments into six classes : patriarchal, 
theocratic, monarchical, aristocratic, democratic, 
and republican. 

Patriarchal Government. — This is the earliest form 
of government of which we have any record. It 



ON GOVERNMENT. 5 

had its origin in the natural right of the parent to 
govern his children. The term patriarch was ap- 
plied in early times to the father and ruler of a 
family. The word family is used not only in a re- 
stricted sense applying to one's household, but also 
in a more extended sense applying to the descen- 
dants from a common progenitor. In a patriarchal 
government, the eldest male parent was the abso- 
lute ruler of the family, having the power of life 
and death over his children. Their flocks and herds 
were his flocks and herds, and their houses and 
persons were as unqualifiedly his as his slaves were 
his. Abraham, Isaac, and Jacob were patriarchal 
rulers. 

1. " Tbey have neither assemblies for consultation nor laws, 
but every one exercises jurisdiction over his wives and his 
children, and they pay no regard to one another/' — Horner, 
" The Odyssey. 11 

2. u Communities began to exist wherever a family held to- 
gether, instead of separating at the death of its patriarchal 
chieftain."— Bagehot, "Physics and Politics/' p. 82, 

Theocratic Government. — As the derivation of the 
word implies, a theocratic government is the gov- 
ernment of a nation by God. The Supreme Being 
is regarded as the sole ruler, and the divine com- 
mands are received as the laws of the realm. The 
priests are the interpreters of the divine will, and 
act as the representatives of the invisible ruler. 
The government of the Hebrews, as established by 
Moses, is an example of a theocratic government. 

Monarchical Government. — Monarchy means single 
power, the government of a single person. In a 
monarchical government, the controlling power is 



6 THE GOVERNMENT OF THE UNITED STATES. 

in the hands of one person, who is the sole ruler of 
the people. In the earliest stages of society, king- 
ly government, free from all control, supplied the 
only approach to any settled rule or order. It is 
only when an adequate amount of intelligence and 
knowledge are possessed by a people that free in- 
stitutions are possible. Monarchies are either ab- 
solute or limited, elective or hereditary. 

" Originally, the difficulty of obeying the wills of many dif- 
ferent persons possessing authority, and not agreed as to the 
method of administration, led, in all probability, to the estab- 
lishment of a monarchy." — Doran, "Encyclopaedia Britanni- 
ca," vol. xv. p. 411. 

Absolute or Limited Monarchy. — An absolute mon- 
archy is one in which the ruler has absolute control 
over his subjects. His will is the law of the land, 
and there are no constitutional limits to his pow- 
ers. 'No department of government acts as a 
check on the exercise on his part of supreme au- 
thority. He makes laws for the government of his 
subjects, sees that his edicts are carried into execu- 
tion, punishes any infringements of his authority, 
and is the sole judge of his own acts. It must not, 
however, be supposed that there are no checks to 
the caprice and lawlessness of absolute govern- 
ments. In every state there are certain forces and 
influences that a despot cannot ignore. Even a ty- 
rant cannot with safety to himself disregard estab- 
lished customs, attack with impunity cherished in- 
stitutions, violently oppose the religious sentiments 
of a nation, or disregard entirely the rights of his 
subjects. The fear of revolution or of personal vi- 



ON GOVERNMENT. 7 

olence is a wholesome check to the lawlessness of 
despotic rulers. A limited monarchy is one in 
which the power of the monarch is limited by 
constitutional provisions, and held in check by other 
departments of government. In other words, the 
whole power of government is not vested in the 
chief executive, but certain portions are committed 
to specified departments, which mutually act as a 
check upon each other. China is an example of an 
absolute, and England of a limited, monarchy. 

Elective or Hereditary Monarchy. — It is probable 
that most of the early kings were elected, and that 
their power was not transmitted to the members 
of their own family. Owing, however, to the nat- 
ural desire of a ruler to secure the succession to his 
own family, and to perpetuate the family name, 
the hereditary principle was established, and cer- 
tain families, for long periods of time, have had 
undisputed possession of kingly power. 

Aristocratic Government. — An aristocratic govern- 
ment has already been defined as a government by 
a few privileged persons. The word aristocracy 
means etymologically the government of the best, 
the noblest. A few families, distinguished by birth 
and Gulture, and possessed of considerable wealth, 
together share the sovereignty and control the af- 
fairs of state. Kingly power, unable in some states 
to maintain itself against the combined resistance 
of a few families of noble descent, has passed into 
the hands of a privileged few. Aristocratic gov- 
ernments have been few in number, and usually 
short-lived. A body of nobles, jealous of one an- 



8 THE GOVERNMENT OF THE UNITED STATES. 

other, and afraid that some one of their number 
may obtain a controlling influence in the adminis- 
tration of affairs, cannot act in concert for a long 
period of time. Factions spring up and destroy 
each other. Aristocracies, as a general rule, soon 
become democracies, or are merged into monarchies. 

Democratic Government. — A democratic govern- 
ment is a government by the people. The supreme 
power is in their hands, and is directly exercised 
by them. In a pure democracy the people meet 
in general assembly to devise measures for the gen- 
eral good, and to make such laws as are necessary 
for their mutual protection and guidance. This is 
only possible in a small state. A democratic gov- 
ernment is generally understood to be a govern- 
ment in which the sovereign power is in the hands 
of the people, whether exercised directly by them- 
selves or through their agents or representatives. 

Republican Government. — In a small state it is an 
easy matter for the citizens to meet together to 
legislate with reference to their common interests, 
but in a state including within its limits an extend- 
ed territory this is impossible. It therefore be- 
comes necessary for the people to select certain 
persons as their representatives, to do for them 
what they would do for themselves. These persons, 
as their agents, constitute the government, and act 
in their stead. A republic might be described as a 
representative democracy. A constitution and a 
system of representation are distinguishing features 
of a republic. 

Government of the United States. — The government 



ON GOVERNMENT. 9 

of the United States is an example of a republican 
form of government. The sovereign power is in 
the hands of the people, and no authority can be 
exercised by any man, or any body of men, unless 
the people expressly confer such authority upon 
them. A constitution, adopted by the people, spec- 
ifies the powers conferred upon the government. 
[Representatives are periodically chosen to advise 
together for the general good. The powers of 
government are not vested in any one person, 
or even in a single body of men, but in three dis- 
tinct and co-ordinate departments — the legislative, 
or law-making department ; the executive, or law- 
executing department ; the judicial, or judging de- 
partment. The several departments act as a check 
upon each other. 

The Government Best Administered Said to be Best. — 
It is doubtless true that all forms of government 
have answered in the main a good purpose, and 
when wisely administered have promoted the hap- 
piness and well-being of the people. Few, how- 
ever, will be willing to accept Pope's saying : 

" The forms' of go vernment let fools contest, 
Whate'er is best administer'd is best." 

History and experience have taught men that their 
liberties are never safe when subject to the abso- 
lute control of one or more persons. Sometimes, 
under the humane administration of a despotic 
ruler, the people have been contented and prosper- 
ous ; at other times the selfishness and cruelty of a 
tyrant have brought misery and untold suffering 
on a whole nation. 
1* 



10 THE GOVERNMENT OF THE UNITED STATES. 

" A government is to be judged by its action upon men and 
by its action upon things; by what it makes of tlie citizens 
and "what it does for them ; its tendency to improve or dete- 
riorate the people themselves, and the goodness or badness of 
the work it performs for them, and by means of them."— Mill, 
" Representative Government," p. 43. 



The Best Form of Government. — The government 
best fitted to promote the interests of any given 
society is one in which the whole people partici- 
pate. Since it is impossible, except in small com- 
munities where all can meet together to discuss 
and decide questions of public interest, for all to 
participate personally in the transaction of public 
business, it follows that a representative govern- 
ment approaches more nearly to the type of a per- 
fect government than any other. In such a gov- 
ernment, citizens, either in person or through their 
representatives, have a voice in the administration 
of public affairs. When the citizen is called upon 
to take an actual part in local or general questions, 
he learns to stand up for his own interests, and at 
the same time to respect the rights of others, so 
that motives are constantly supplied for intelligent 
action and for the promotion of the general good. 
"Whenever the people participate in the functions 
of government, a general improvement in their 
condition follows. 

Three Conditions Necessary. — In order to secure per- 
manency to any form of government, three condi- 
tions are necessary : 

1. The people must be willing to accept it. 

2. They must support and defend it. 



ON GOVERNMENT. 11 

3. They must be willing to perform the duties 
which it requires of them. 

Consent of the Governed. — No government can long 
maintain itself unless there exists a willingness on 
the part of the people to submit to its authority, or 
at least not to oppose it. Though government is a 
necessity, and in the very nature of things must be 
established in every state, the form in which it is 
exercised is dependent upon the consent of the 
governed. True it is that open violence has at 
times ruled a nation, and that the government was 
nothing more nor less than mere brute force assert- 
ing itself, still the truth holds good that no govern- 
ment can long exist that is not " approved by the 
men upon whom it is to act." Only by addressing 
itself to the understanding and engaging the free- 
will, of its subjects can a government attain the 
grand object for which Providence designed it. 

Support and Defence of Government. — The love of 
country and the instinct of self-preservation natu- 
rally prompt men to defend their native land and 
hearthstones against the aggressions of foreign en- 
emies. Unprincipled rulers have frequently taken 
advantage of this to provoke foreign powers to acts 
of aggression in order to divert attention from their 
own misrule, and perpetuate their ill-gotten powers 
in the enthusiasm of a national uprising. "When- 
ever a country is threatened by a foreign foe, it has 
always had its loyal defenders, no matter how un- 
worthy the government may have been of support. 
To defend and support the government, therefore, 
implies something more than to aid in repelling a 



12 THE GOVERNMENT OF THE UNITED STATES. 

foreign foe. The loyal support of every good citi- 
zen is equally demanded in peace as in war. In 
wars wrongly waged by foreign powers, in civil 
commotions, in local disturbances, in the enforce- 
ment of the laws, in the maintenance of peace, and 
in the promotion of the general welfare, the duty 
of the citizen to aid the government is equally bind- 
ing. This will be more likely to follow when the 
government has been established by the consent of 
the governed. 

Duties Required of Citizens. — One of the unfortu- 
nate features of a republican form of government 
is the unwillingness of many to take an active part 
in the administration of public affairs. The de- 
mands of business, an unwillingness to be subject 
to unfair criticisms, the feeling that political life 
tends to blunt a man's moral sensibilities, make 
many very reluctant to accept public office, or even 
take part in the discussion of public questions. 
There is consequently great danger of important 
interests falling into the hands of incompetent or 
unscrupulous men, or of those who have private 
interests to promote. It would, indeed, be greatly 
to the advantage of good government if the office 
sought the man, and not the man the office ; but, 
with the growth of the country in population and 
wealth, political offices are becoming more remu- 
nerative than formerly, and they are eagerly sought 
by unworthy men as a means of bettering their 
own fortune or to serve private or local interests. 
It is, therefore, the duty of all good citizens to 
be willing to perform their proper share of official 



ON GOVERNMENT. 13 

duties, even at some inconvenience to themselves. 
The influence of the government on the well-being 
of society is so great, the interests of all are so ma- 
terially affected by the good or bad administration 
of the laws, that it is the bounden duty of each cit- 
izen to aid in every possible manner the promotion 
of the general welfare. 

1. " Everybody should be made to aid in government." — 
Helps, " Thoughts upon Government," p. 2. 

2. " How can institutions provide a good municipal admin- 
istration if there exists such indifference to the subject that 
those who would administer honestly and capably cannot be 
induced to serve, and the duties are left to those who under- 
take them because they have some private interest to be pro- 
moted ?" — Mill, " Representative Government," p. 38. 

Public Questions. — In order to secure a healthy 
condition of public sentiment, it is needful that 
there should be the greatest freedom in the discus- 
sion of public questions. There will be but little 
progress under any form of government if common 
actions and common interests are not subjects of 
common discussion. Public questions, especially 
under a republican form of government, should al- 
ways be discussed with freedom and decided with 
discretion. Whenever, after a full and free discus- 
sion, the will of the majority has been lawfully ex- 
pressed, it is the duty of the minority to cheerfully 
acquiesce, until a change occurs in public opinion. 
This is the necessary price to be paid for a free 
government. 

An Enlightened Public Opinion. — Intelligently to 
discuss and decide public questions requires a cer- 
tain amount of general information. This, as a 



14 THE GOVERNMENT OF THE UNITED STATES. 

general rule, can only be secured where educational 
advantages are within the reach of all. If the peo- 
ple are ignorant and governed by prejudice, an in- 
telligent public opinion will be impossible. It is, 
therefore, the duty of the state to promote in every 
possible manner the enlightenment of the masses, 
and to provide generously for the education of its 
citizens. Intelligence and virtue can alone give 
permanency to free institutions. Ignorance tends 
inevitably to destroy the liberties of a people. Only 
when the people are surrounded by the atmosphere 
of an enlightened public opinion can free institu- 
tions flourish. As men improve in knowledge, the 
government will improve in point of excellence, 
and be less likely to go wrong. 

1. "A widespread and sound education is indispensable to 
liberty." — Lieber, " Civil Liberty and Self-Govermnent," p. 299. 

2. " Meanwhile the sovereign States remain entire and undi- 
visible, 
And if that ignorance were removed which acts 
Within the compass of the several shores 
To breed commotion and disquietude, 
Each might preserve the beautiful repose 
Of heavenly bodies shining in their spheres ; 
The discipline of despotism is unknown 
Amongst us, hence the more w 7 e need 
The discipline of virtue. Order else 
Cannot subsist, nor confidence, nor peace. " 

William Wordsworth. 

Obligation to Vote. — The right to vote is not sim- 
ply a privilege to be used or not to be used, as one 
pleases, but when it is conferred every citizen is in 
duty bound to exercise it. No one can rightly ex- 
cuse himself from performing his duty as an elector 



ON GOVERNMENT. 15 

by reason of the ordinary claims of business or the 
misrule of political parties. When the generality 
of electors are not sufficiently interested in their 
own government to give their votes, representative 
institutions are of little value. 1 A people govern- 
ing themselves by free and universal suffrage, by 
neglecting to bestow their suffrages when occasion 
requires, jeopardize not only the interests of the 
state, but also their own private interests. Per- 
sons who are not willing to perform their obliga- 
tions as electors have no right to complain when 
the government is unwisely administered, or when 
their property is injured by pernicious legislation. 
A free ballot and a constantly corrected public opin- 
ion are essential elements of good government. 

" There are multitudes in countries where suffrage is un- 
restricted whose property is injured by misgovernuient, and 
who are continually complaining of the state of things around 
them, who make no efforts, by use of their right of suffrage, 
to improve it. Either in despair or in selfish disregard of the 
public welfare, they stand aloof from politics, even when a po- 
litical duty might not cost them half an hour's time once or 
twice a year." — Woolsey, " Political Science," vol i. p. 388. 

Importance of Caucuses. — Not only is it the duty 
of the voter to exercise the right of suffrage when 
occasion requires, but, as political parties nominate 
persons for public office, and shape the policy of 
the government, it is also binding on him to attend 
his party caucuses. The lack of interest displayed 
by many in the primary meetings of the party to 
which they belong is a discouraging feature of our 

1 Mill, "Representative Government," p. 16. 



16 THE GOVERNMENT OF THE UNITED STATES. 

political institutions, and it often happens that, by- 
reason of the apathy of many and the intrigues and 
adroit combinations of a few, unworthy and incom- 
petent men are selected as candidates for important 
offices. Government consists of the acts done by 
persons selected by political parties. If the agents, 
or the persons who choose them, are unprincipled, 
and seek only to promote their own private inter- 
ests, good government is impossible. As the gen- 
eral standard of intelligence and integrity among 
public men is raised, the government will corre- 
spondingly improve in excellence. It is therefore 
the duty of every good citizen to attend primary 
meetings, and to see to it that honest and capable 
men are nominated for public offices. 

The Right of Revolution. — Can there ever arise 
good and sufficient reasons for the overthrow of 
an established government ? This is a serious ques- 
tion, and can be best answered in the words of the 
Declaration of Independence : " All men are cre- 
ated equal; they are endowed by their Creator 
with certain unalienable rights ; among these are 
life, liberty, and the pursuit of happiness. To se- 
cure these rights, governments are instituted among 
men, deriving their just powers from the consent 
of the governed. Whenever any form of govern- 
ment becomes destructive of these ends, it is the 
right of the people to alter or to abolish it, and to 
institute a new government, laying its foundation 
on such principles, and organizing its powers in such 
form, as to them shall seem most likely to effect 
their safety and happiness. Prudence, indeed, will 



ON GOVERNMENT. 17 

dictate that governments long established should 
not be changed for light and transient causes ; and 
accordingly all experience has shown that mankind 
are more disposed to suffer, while evils are suffer- 
able, than to right themselves by abolishing the 
forms to which they are accustomed. But when a 
long train of abuses and usurpations, pursuing in- 
variably the same object, evinces a design to reduce 
them under absolute despotism, it is their right, it 
is their duty, to throw off such government, and to 
provide new guards for their future security." 

The Importance of a Proper Knowledge of our own Gov- 
ernment. — In a country like our own, where the cit- 
izen may at any time be called upon to occupy im- 
portant public positions and to exercise important 
powers, it is needful that he should have an intel- 
ligent knowledge of the principles upon which the 
government rests, and of the duties and powers of 
each department of government. The liberties of 
the people can only be preserved by a just appre- 
ciation of the rights and privileges of the citizen 
and of the powers and limitations of the govern- 
ment. How can the people pass an intelligent 
judgment upon the official acts of their represent- 
atives, or even make suitable selections for public 
offices, without a knowledge of the fundamental 
principles and the operations of the government ? 
As the Constitution is the great charter of Ameri- 
can liberty, every American citizen should, by per- 
sonal knowledge, be able to judge for himself of its 
provisions, and not depend upon the opinions and 
prejudices of others for his information. Only by 



18 THE GOVERNMENT OF THE UNITED STATES. 

so doing can he obtain a proper knowledge of the 
principles upon which our system of government is 
founded. 

"There are few studies which would conduce more to hu- 
man happiness than a thorough consideration of government 
— of its duties, its powers, its privileges, and especially of the 
limits which should be assigned to its interference." — Helps, 
" Thoughts upon Government," p. 1. 

Division of the Subject. — The following is a brief 
outline of the plan followed in treating of this sub- 
ject: 

1. The government of the American colonies, 

and the relations of the colonies to each 
other ; 

2. The causes which led to a union of the col- 

onies ; 

3. The Confederation and the causes of its 

failure ; 

4. Our present system of government under 

the Constitution. 






GROWTH OF NATIONAL AUTHORITY 



CHAPTER II. 

THE AMERICAN COLONIES. 

The Colonies. — In order the better to understand 
the origin and object of the Constitution of the 
United States, a brief outline of the political or- 
ganization of the American colonies is necessary. 
It must not be forgotten that the thirteen colonies, 
with but a few exceptions, were originally settled 
by British subjects, and that all were subject to the 
authority of the King of England. "When North 
America was discovered by John Cabot and his son 
Sebastian, they took possession of the country in 
the name of Henry VII., the King of England. 
Territory thus acquired became the exclusive prop- 
erty of the crown. The King could retain it at his 
pleasure, or grant the whole or parts of it to others. 

The colonies at first were under the control of the King, and 
Parliament had no right to interfere in their affairs. After the 
execution of Charles L, Parliament assumed the government of 
the colonies, and maintained that acts passed by them were 
binding on the colonies, in the same way as on the mother 
country. 

Government of the Colonies. — Portions of this new- 
ly discovered territory the King retained under his 
exclusive control ; other parts he granted to one or 
more persons, conferring upon them the right of 
the soil and the right of government. The result 



22 THE GOVERNMENT OF THE UNITED STATES. 

was that there were three forms of government es- 
tablished in the colonies : provincial or royal, pro- 
prietary, and charter. 

Provincial Governments. — Provincial or royal gov- 
ernments were those which were under the direct 
and immediate authority of the King. A governor 
and council were appointed by him, who held office 
during his pleasure. The governor was his repre- 
sentative. The council formed a part of the leg- 
islature, and also assisted the governor in the dis- 
charge of his public duties. Representatives se- 
lected by the freeholders or planters composed the 
lower house of the legislature, the council forming 
the upper house. The legislature could make laws 
regulating their local affairs, providing these laws 
did not conflict with the laws and customs of Eng- 
land. The governor exercised the general powers 
of an executive officer, appointed judges and other 
officers, and could defeat legislation by refusing 
to give his consent. Moreover, all legislation was 
subject to the approval of the King. 

1. The government of the colonies was modelled after that 
of England. 

2. At the commencement of the American Revolution, pro- 
vincial governments existed in New Hampshire, New York, 
New Jersey, North Carolina, South Carolina, and Georgia. 
These colonies were governed as royal provinces. 

Proprietary Governments. — Proprietary govern - 
ments were those in which the crown granted to 
certain individuals, called the proprietaries, the 
ownership of the land and the right to govern it. 
For example, Charles II. granted to William Penn 



THE AMERICAN COLONIES. 23 

the exclusive right to settle and govern the ter- 
ritory now included in the State of Pennsylvania. 
In accordance with this proprietary right, Penn ap- 
pointed magistrates and organized a legislature. 
He was invested by the king with nearly the same 
authority as he himself possessed in the provincial 
governments. The crown gave him kingly power 
over this territory. Proprietary governments, then, 
differed from provincial governments in this, that 
they were under the direct control of proprietaries 
instead of the King. The King gave his rights and 
powers over a specified territory to others, these in 
turn gave certain rights to the inhabitants. The 
rights and powers granted by the King included the 
right of the soil, the collection of the revenues, and 
the general powers of government. 

1. A colony might be dependent on one proprietary or on a 
small number of proprietaries. 

2. At the time of the American Revolution there were only 
three proprietary governments: Pennsylvania and Delaware, 
held by William Penn as proprietary; Maryland, by Lord 
Baltimore. 

Charter Governments. — Sometimes the King be- 
stowed the right of the soil and the general pow- 
ers of government upon a body of men, a cor- 
poration. The instrument by which these rights 
and privileges were conferred was called a charter. 
Connecticut, for example, was a charter government. 
Its charter conferred on the colonists unqualified 
power to govern themselves. They were allowed 
to elect all their own officers, to enact their own 
laws, to administer justice without appeals to Eng- 



24 THE GOVERNMENT OF THE UNITED STATES. 

land, to inflict punishments, to confer pardons, and, 
in a word, to exercise every power, deliberative and 
active. 1 Charter governments were organized upon 
democratic principles, and were not bound by acts 
of the crown at variance with their charters. The 
attempt to change radically the charter of Massa- 
chusetts, because it had incurred the displeasure 
of the crown, was one of the causes which precipi- 
tated the war of the Eevolution. 

At the period of the Revolution there were three charter 
governments : Massachusetts, Rhode Island, and Connecticut. 
The second charter of Massachusetts (1691) vested the ap- 
pointment of governor in the crown. In this respect it was 
similar to a provincial government. In Connecticut and Rhode 
Island, the governor and all other officers were chosen by the 
freemen of the colony. 

Distinction between these Forms of Government. — 
There was a marked distinction between these three 
kinds of government — provincial, proprietary, and 
charter. Provincial governments were those that 
were subject to the direct control of the king. The 
governor as his representative appointed all judges 
and executive officers, and the people were entirely 
dependent on the pleasure of the crown. In pro- 
prietary governments, the powers exercised directly 
by the King were vested in one proprietary or in 
several. Officers were appointed, and executive 
powers were exercised, not by the King, but by 
one or more persons to whom he had delegated 
his rights and powers. Charter governments were 
great corporations possessing, by grants from the 

Bancroft, " History of the United States, vol. ii. p. 55. 



THE AMERICAN COLONIES. 25 

King, all the powers of government — executive, 
legislative, and judicial. They selected their own 
officers, and, except in name, they were practically 
independent. In charter governments, the powers 
of government were exercised not by the King, 
neither by one or more persons to whom he had 
delegated his powers, but by the people themselves. 
Common Characteristics. — Although the thirteen 
colonies differed in their political organization 
and special privileges, they were alike in the fol- 
lowing particulars : 

1. In each of them there was a governor, a 

council, and a representative assembly. 

2. The citizens retained the right of electing 

their own representatives, and of being 
tried by juries of their own countrymen. 

3. As British subjects they acknowledged the 

authority of the King, and conceded the 
right of Parliament to legislate with ref- 
erence to their foreign affairs. 

4. They claimed the rights and privileges of 

Englishmen, and especially the right to 
manage their local affairs, and to legis- 
late w r ith reference to their local inter- 
ests. All local legislation was, however, 
subject to the restriction that it must, as 
far as possible, be agreeable to the law r s 
and customs of England. 

5. There was no political union between the 

several colonies, but they were independ- 
ent of each other. 
"The thirteen colonies had been founded in very different 
2 



26 THE GOVERNMENT OF THE UNITED STATES. 

times and under very different circumstances. Their whole 
course of development, their political institutions, their re- 
ligious views and social relations, were so divergent, the one 
from the other, that it was easy to find more points of dif- 
ference between them than of similarity and comparison." — 
Von Hoist, " Constitutional History of the United States," vol. 
i. p. 2. 



CHAPTEE III. 

CAUSES THAT LED TO THE AMERICAN REVOLUTION. 

Rights of the Colonies. — The colonists maintained 
that they were entitled as British subjects to all the 
rights and privileges of Englishmen, and that in 
taking up their home in America, tliey and their 
descendants had not lost any of " the inherent rights 
and liberties of natural-born subjects of Great Brit- 
ain." They claimed the benefit and protection of 
the common law of England, as far as it was appli- 
cable to their new surroundings and condition, and 
all the privileges and immunities granted and con- 
firmed to them by royal charters. It is a well- 
settled doctrine of law, that, if an uninhabited coun- 
try is discovered and planted by British subjects, 
the laws of England, so far as they are applicable, 
are there held immediately in force ; for, in all such 
cases, the subjects, wherever they go, carry these 
laws with them. 1 

The Common Law. — The common law of England, 
claimed by the colonists as their birthright and in- 
heritance, was that law by which proceedings and 
determinations in the King s ordinary courts of jus- 
tice were guided and directed. 2 It included those 

1 Story, " Commentaries on the Constitution," vol. i. p. 100. 
- a Blackstone, " Commentaries on the Laws of England/' 
intro., p. 67. 



28 THE GOVERNMENT OF THE UNITED STATES. 

principles, usages, and rules of action, applicable to 
the government and security of person and prop- 
erty, which did not rest for their authority upon 
any express and positive declaration of the will 
of the legislature. 1 It was the outgrowth of the 
habits, opinions, and wants of the people that had 
silently and almost insensibly controlled the course 
of business and the practice of the courts, and had 
been subject to such changes as the needs and im- 
proved condition of the people had from time to 
time required. It was not the product of the wis- 
dom of one man, or society of men, in one age ; but 
of the wisdom, counsel, experience, and observation 
of many ages of wise and observing men. 2 It is 
often designated as unwritten law to distinguish it 
from written or statute law, which owes its force 
and authority to acts of the legislature. Unwritten 
or common law has acquired its binding power and 
the force of laws in consequence of the common 
consent and immemorial practice of the people, 
sanctioned by judicial decisions, and not by reason 
of statutes now extant. The common law of Eng- 
land is the foundation of our jurisprudence in all 
the States, with the exception of Louisiana. Many 
of its principles have been embodied in the Consti- 
tution of the United States and in the constitutions 
of the States. 

" In Louisiana the law of France, which is the Roman civil 
Law with such modifications as obtained at the time of her 
purchase, is the foundation of her jurisprudence; for it is a 

1 Kent, " Commentaries on American Law," vol. i. p. 471. 
3 Hale, " Rollers Abridgment," preface. 



CAUSES THAT LED TO THE AMERICAN REVOLUTION. 29 

well-settled principle of international law, that whenever a 
country is conquered by or ceded to another, the law of that 
country, as it was at the time of its cession or conquest, re- 
mains until it is changed by its new master." — Sharswood. 

Rights Violated. — Although the colonists as Brit- 
ish subjects were entitled to all the rights and priv- 
ileges of Englishmen, there was an unwillingness 
on the part of the parent country to respect these 
rights, and to protect the people in their exercise. 
The home government treated the settlers not as 
their equals, but as dependants on their bounty, and 
as entitled only to such rights as they were willing 
to grant. The misrule of the roj^al governors, the 
exactions of the proprietaries, the unjust navigation 
laws, which were framed for the benefit of English 
merchants and English manufacturers, at the ex- 
pense of American commerce, the repeated viola- 
tions of the rights of the colonists, alienated a 
"people who gloried in being subjects of Great Brit- 
ain, and finally brought about the American Bevo- 
tion. Although there were many grounds for com- 
plaint among the colonists, the more immediate 
cause of the Bevolution was the effort of Parlia- 
ment to tax the colonies without their consent. . 

The colonists were obliged to sell their products in Eng- 
land, and they could buy foreign goods only in English mar- 
kets. No merchandise could be carried to or from the colonies 
except in English ships. Iron works and other industries were 
prohibited. 

Taxation without Representation. — It is one of the 
fundamental principles of English liberty that taxes 
are a free gift from the people, and that no taxes 



30 THE GOVERNMENT OF THE UNITED STATES. 

can be imposed without their consent, given either 
in person or by their representatives. As the peo- 
ple of the colonies were not represented in Parlia- 
ment, they stoutly maintained that an attempt to 
impose internal taxes of any kind whatever, with- 
out their consent, was an act of tyranny, and they 
resisted it as fatal to their liberties. 

Reasons Assigned for Taxing the Colonies. — At the 
close of the long war between France and England 
which ended with the Peace of Paris and the loss 
to the French of Canada, the home government 
was plunged into debt, and it determined to tax 
the colonies, on the plea that they ought to bear 
their share of this burden. The proposed taxes 
were not in themselves oppressive ; but the prin- 
ciple at stake was of such vital importance to the 
liberties of the people that the most serious alarm 
was excited, and the tax laws were obstinately re- 
sisted. The two tax laws that aroused special indig- 
nation were the Stamp Act and the tax on tea. 

The Stamp Act. — The Stamp Act was a law requir- 
ing that all business documents should bear a gov- 
ernment stamp, varying in price from six cents to 
fifty dollars, according to the importance of the 
document. ISTewspapers, pamphlets, almanacs, and 
even the advertisements which they contained, were 
also subject to this tax. So loud was the expres- 
sion of public indignation that Parliament was com- 
pelled to repeal the Stamp Act, but it passed a bill 
declaring that Parliament had an unqualified right 
to impose taxes on the colonies. Afterwards new 
taxes were imposed on glass, paper, printers' mate- 



CAUSES THAT LED TO THE AMERICAN REVOLUTION. 31 

rials, and tea ; but the colonists again made such a 
vigorous resistance that the government, alarmed 
at their firmness, repealed all taxes except the tax 
on tea. 

The Tax on Tea. — The English government made 
arrangements with the East India Company, which 
at that time brought all the tea from China, to 
sell this article in America for less than it could 
be bought in England, and it levied a tax of six 
cents a pound. " There must be one tax," said the 
King, " to keep up the right." It was thought that 
the Americans would not resist this tax, tea being 
by this arrangement even cheaper in America than 
in England, but this artifice exasperated them all 
the more. It was not so much the money to be 
paid, that excited such remonstrance, as the prin- 
ciple involved. The people of Boston resolved not 
to allow any tea to be landed, for fear that if it 
should be sold, the precedent for the collection of 
such taxes w^ould be established. Tea was de- 
nounced as a " pernicious weed," and all persons 
who might henceforth be concerned in its importa- 
tion were declared enemies to their country. 1 The 
open and violent resistance to this tax on the part of 
the colonies, and the retaliatory measures adopted 
by the home government, finally culminated in a 
resort to arms and the establishment of an inde- 
pendent government. 

Declaration of Independence. — Although the Amer- 
ican Revolution really commenced with the battle 

1 Hildreth, "History of the United States," vol. iii. p. 29. 



32 THE GOVERNMENT OF THE UNITED STATES. 

of Lexington, the people did not seriously contem- 
plate a permanent severance of their relations with 
the mother country till more than a year after the 
commencement of hostilities. When, however, it 
became evident that a proper adjustment of difficul- 
ties was impossible, delegates from the colonies, in 
congress assembled, " Resolved, That these United 
Colonies are, and of right ought to be, free and 
independent States." Two days afterwards, on the 
fourth of July, 1776, the Declaration of Indepen- 
dence was formally adopted, and the colonies were 
declared to be " absolved from all allegiance to the 
British crown." 

When the thirteen colonies declared themselves free and 
independent States, the colonial charters naturally became the 
State constitutions. Before the close of the war, all the States, 
with the exception of Connecticut and Rhode Island, adopted 
new constitutions. These two States carried on their govern- 
ments under their old royal charters, Connecticut till 1818, 
Rhode Island till 1842. 






CHAPTEE IV. 

THE CONFEDERATION. 

Relation of the Colonies to Each Other. — At the com- 
mencement of the American Revolution there was 
no political union between the thirteen colonies. 
They were entirely independent of each other. 
The attachment of each of the colonies to its own 
individual liberties was strong enough to keep them 
in the condition of separate States. Still there were 
certain affinities that had a tendency to unite them. 
They were of English origin, they owed a common 
allegiance to Great Britain, they claimed in com- 
mon the rights and privileges of British subjects. 
In the French and Indian wars, they fought to- 
gether for mutual protection, and for the honor of 
the mother country. All this naturally made a 
union of the colonies possible. 

Attempts at Union. — As far back as 1643, the four 
New England colonies, Massachusetts, Plymouth, 
Connecticut, and New Haven, formed a league for 
self-defence and the common welfare. This lasted 
for about forty years. The horrible massacre of 
men, women, and children by the French and In- 
dians at Schenectady, in 1690, was the occasion of 
the first call for a general congress in America. 
In 1754, delegates from six or seven colonies met 
in Albany to concert measures for defence against 
2* 



34 THE GOVERNMENT OF THE UNITED STATES. 

the French and Indians, and to treat with the In- 
dian tribes called the Six Nations. America had 
never seen an assembly so venerable for the States 
that were represented, or for the great and able 
men who composed it. 1 The fear of invasions from 
the French and Indians suggested and seemed to 
render necessary some form of confederation, and 
"every voice declared a union of all the colonies to 
be absolutely necessary." The plan proposed was 
for the government of each colony to remain as 
it was, and for all the colonies to be united un- 
der one federal government. A president-general 
was to be appointed by the King, and a congress 
elected by the people, the authority of the crown 
being exerted through the president-general, and 
that of the people through congress. This plan 
did not prove acceptable either to the English gov- 
ernment or to the colonies. The King opposed it 
because he feared that it would make the colonies 
too strong. The colonies, fearing for their individ- 
ual liberties, rejected it because it gave too much 
power to the president-general. The author of this 
plan was Benjamin Franklin, and he was its warm- 
est supporter. If the plan had been adopted, it 
might possibly have put off for many years the 
American Revolution, and perhaps have avoided it 
altogether. 

The Stamp Act Congress. — After the passage of 
the Stamp Act, delegates were appointed by nine 
of the colonies, to consult " on the difficulties in 

1 Bancroft, "History of the United States," vol. iv. p. 122. 



THE CONFEDERATION. 35 

which the colonies were and must be placed by 
the late acts of Parliament levying duties and 
taxes upon them," and to agree upon some plan of 
action. They met in New York, and in the course 
of a three weeks' session passed resolutions setting 
forth their rights and grievances, and prepared a 
petition to the King, together with a memorial to 
each House of Parliament. These occasional meet- 
ings of delegates from the several colonies to con- 
cert plans for mutual protection, and for the main- 
tenance of common interests and rights, prepared 
the way for a union of all the States. It needed 
only the American Revolution to bind the colonies 
together, and to prepare the way for the establish- 
ment of a national government. 

The First Continental Congress. — When the Eng- 
lish government determined to impose a tax on tea, 
in order " to maintain the right," and endeavored 
to force a quantity of the obnoxious article upon the 
colonies, thinking that if it were once landed and 
offered for sale, it would soon find its way into gen- 
eral use, the attempt met with most earnest remon- 
strance from the several legislatures, and the effort 
to land some of the tea at Boston encountered open 
and violent resistance. This so exasperated the 
home government that it closed the port of Boston 
against commerce, and sent troops to intimidate 
the inhabitants. Finding that remonstrance and 
resistance on the part of individual colonies were 
of no avail, and realizing that combined resistance 
alone would prove successful, delegates were chosen 
from the several colonies, at the suggestion of 



36 THE GOVERNMENT OF THE UNITED STATES. 

Massachusetts, to meet at Philadelphia, in order 
to deliberate with reference to the common good, 
and adopt some general plan for future operations. 
This memorable congress met on the fifth day of 
September, 1774, and is known as the First Con- 
tinental Congress. It consisted of leading men 
from twelve of the provinces. Four important 
steps were taken : 

1. A declaration of rights was adopted. 

2. An agreement was drawn up pledging the 

colonies to have no commercial relations 
with England till the obnoxious acts of 
Parliament were repealed. This agree- 
ment was embodied in what is known 
as the Articles of Association. 

3. The grievances of the colonies were reiter- 

ated in a petition to the King and in an 
address to the people of Great Britain. 

4. Provision was made for another congress 

to meet, unless these grievances were 

redressed. 
It will be seen that more decided measures were 
adopted by the First Continental Congress than by 
the Stamp Act Congress. The latter merely de- 
clared the rights and grievances of the colonies; 
the former not only did this, but also agreed upon 
fourteen Articles of Association as the basis of an 
American Association, and made provision for a 
second congress to assemble if the grievances com- 
plained of were not redressed. Thus another im- 
portant step was taken towards the formation of a 
permanent union. 



THE CONFEDERATION. 37 

The session lasted eight weeks. There were fifty-three 
delegates, each colony having only one vote, no matter how 
many delegates it had. This method of voting was followed 
until the adoption of the Constitution. 

The Second Continental Congress. — The Second Con- 
tinental Congress met in May, 1775, immediately 
after the battles of Lexington and Concord. The 
First Continental Congress claimed no political 
power, but this Congress immediately entered upon 
the exercise of comprehensive authority, and as- 
sumed supreme direction of the War of Indepen- 
dence. After the Declaration of Independence, it 
constituted to all intents and purposes the national 
government, till near the close of the Revolution, 
when the Articles of Confederation were adopted. 
As the Continental Congress was organized by a 
voluntary association of the colonies to resist the 
unjust demands of England, and to concert meas- 
ures for common defence, the powers that it exer- 
cised were granted by tacit consent. "Whatever 
was done received the support of the several col- 
onies, although it had no legal or binding force, 
the powers of the congressional government not 
being defined. The union was a union of defence 
primarily, and at the close of the war, unless some 
plan of confederation should be agreed upon, the 
powers tacitly conferred upon the Continental 
Congress would naturally cease and the colonies 
would separate into independent States. To avert 
this danger Articles of Confederation were pre- 
^ pared by Congress, and submitted to the States 
for their adoption. 



38 THE GOVERNMENT OF THE UNITED STATES. 

Articles of Confederation. — Immediately after the 
Declaration of Independence, steps were taken to 
form a permanent union of all the colonies under 
one general government. After much discussion 
and delay, a plan of confederation was submitted 
to the States for their approval. Owing to various 
objections on the part of some of the States, the 
Articles of Confederation were not adopted till 
1781. The experience of the colonies with the 
home government had been such that they feared 
to yield any extensive powers to a central govern- 
ment. There was a disposition to delegate as little 
authority as possible. To determine, therefore, the 
relative powers of Congress and the States, and to 
fix the terms and conditions of the confederation, 
was a matter of no little importance and of equal 
difficulty. 1 There were three principal points of 
controversy : 

1. As to the mode of voting in Congress, 

whether by States or according to wealth 
and population ; 

2. As to the basis according to which troops 

should be raised and taxes apportioned ; 

3. As to the disposition of the vacant lands in 

the West. 1 
A common danger, and the necessity of adopting 
some general plan for mutual protection, led the 
States to make such concessions that finally the 
Articles of Confederation were ratified by all the 
States. 

1 Ilildrcth, "History of the United States," vol. iii. pp. 395, 
397. 



THE CONFEDERATION. 39 

Distinctive Features of the Confederation. — The Con- 
federation was a league of friendship between free 
and independent States. It was established mainly 
for the purpose of defence, the States severally 
binding themselves to assist each other against all 
external attacks. The following is a brief outline 
of the government established by the Articles of 
Confederation : 

1. The Congress consisted of but one house, 

which exercised not only legislative but 
also executive and judicial functions. 
There was no chief executive and no 
national judiciary. 

2. It had certain powers relating to peace and 

war, foreign intercourse, establishing post- 
offices, coining and borrowing money, 
etc. ; but the assent of nine States was 
required in all important matters, and 
the consent of all the legislatures, for 
any constitutional change. 

3. Delegates were appointed annually, in such 

manner as the legislature of each State 
directed, and they were maintained by 
their own States. 

4. Each State was represented by not less than 

two nor more than seven delegates, and 
had but one vote. 

5. Authority was vested in Congress to ap- 

point an executive committee, composed 
of one delegate from each State, to sit 
during the recess of that body, and exe- 
cute such powers of Congress as, with 



40 THE GOVERNMENT OF THE UNITED STATES. 

the consent of nine States, it might from 
time to time think expedient to vest them 
with. 
The large vote required for all important matters 
frequently made it impossible to legislate at all, 
delegates from nine States rarely being present at 
one time, so that Congress was forced again and 
again to adjourn for want of a quorum. At three 
different times, amendments to the Articles of Con- 
federation were proposed by Congress, but although 
they each time received the assent of twelve States, 
they were rejected by the vote of one State. 

The plan of voting by States was continued under the Ar- 
ticles of Confederation, not only on account of the impossi- 
bility of properly ascertaining the relative importance of each 
colony, but because some of the States refused to enter the 
Confederation except upon terms of full equality. 

Defects of the Confederation. — Under the Articles 
of Confederation, Congress was the mere agent of 
a league of States, not a national government with 
citizens bound to obey its commands. Hence when 
money was needed, Congress, instead of imposing 
taxes, made requisitions on the States, which the 
State legislatures granted or withheld according to 
their own convenience and pleasure. When troops 
were needed, Congress had to ask each State to 
furnish its quota. Congress could do but little else 
than recommend measures which could be carried 
into effect only by the voluntary action of the 
states. 

" By this political compact the United States in Congress 
have exclusive power for the following purposes, without be- 



THE CONFEDERATION. 41 

ing able to execute one of them. They may make and con- 
clude treaties, but can only recommend tlic observance of them. 
They may appoint ambassadors, but cannot defray the expenses 
of their tables. They may borrow money in their own name 
on the faith of the Union, but cannot pay a dollar. They may 
coin money, but they cannot purchase an ounce of bullion. 
They may make war and determine what number of troops 
are necessary, but cannot raise a single soldier. In short, they 
may declare everything and do nothing" — "American Museum," 
vol. i. p. 270. 



C 



CHAPTER V. 

CONSTITUTIONAL GOVERNMENT. 

Government must Possess the Means of Enforcing 
Obedience. — Government has already been defined 
as control. Control necessarily implies obedience. 
Obedience can only be secured by a power that is 
able to enforce its commands. It will be readily 
seen that it is essential to all government to have 
the means at its disposal of compelling obedience 
to its decrees. "Without this, no government can 
exist for any length of time. 

1. u Every government ought to possess the means of ex- 
ecuting its own provisions by its own authority." — Hamilton, 
" The Federalist," p. 590. 

2. " Obedience is what makes government, and not the 
names by which it is called." — Burke, speech on " Concilia- 
tion with America." 

Disregard of National Authority under the Confedera- 
tion. — Although the Confederation had many seri- 
ous defects, its greatest weakness was its lack of 
all coercive power. It was unable to compel in- 
dividuals to conform to its enactments. After the 
close of the Revolutionary War, national affairs 
became hopelessly involved. The States neglected 
and even refused to comply with the requisitions 
of Congress for funds to meet pressing necessities. 



CONSTITUTIONAL GOVERNMENT. 43 

The obligations of the government to those who 
fought in its defence were unfulfilled, the inter- 
est on the public debt was unpaid, and treaties 
were openly violated. The States having seaports 
taxed the people of sister States trading through 
them. To add to the demoralization of the times, 
Congress was unable to protect the interests of 
American commerce, and Great Britain, smarting 
under the defeat of its arms in America, took ad- 
vantage of the dissensions of the States and the 
feebleness of the national government to exclude 
American ships from their accustomed traffic with 
the British West Indies, and to restrict them even 
in the direct trade with English ports, so that all 
branches of industry suffered greatly. The gov- 
ernment was powerless to make its authority either 
feared at home or respected abroad. This state of 
affairs showed clearly that the Union could not 
long exist, unless there was lodged somewhere a 
power strong enough to pervade the whole Union 
and to enforce obedience. 

Inadequacy of the Confederation. — Not long after 
the adoption of the Articles of Confederation it 
became evident that they contained so many seri- 
ous defects that, unless some radical changes were 
made, a speedy dissolution of the Union was in- 
evitable. Thoughtful men began to see that if the 
United States were to exist as a nation, there must 
be a central government with direct power both in 
internal and external affairs, able to carry on 
foreign negotiations in the name of the nation, to 
issue commands to the citizens of the state, and to 



44 THE GOVERNMENT OF THE UNITED STATES. 

enforce these commands, if necessary, and to pun- 
ish those who neglected them. 1 

Benefits Secured by the Confederation. — The Confed- 
eration, notwithstanding its many defects, was of 
extended benefit, for the following reasons : 

1. It met the pressing wants of the Union, 

and thus strengthened it. 

2. It conferred a great educational service 

through the experience of its defects. 

3. It carried the nation along until a more 

efficient system was provided. 2 
This service alone entitles the Articles of Confed- 
eration to the respectful recollection of the Amer- 
ican people, and its framers to their gratitude. 3 

Convention Recommended. — All efforts to strength- 
en the government under the Articles of Confed- 
eration, by providing Congress with a permanent 
revenue from customs, failed. The plans submitted 
to the States by Congress for this purpose were 
rejected. In 1786, the legislature of Virginia pro- 
posed to the several States that commissioners be 
appointed to meet in convention to consider the 
means of establishing a uniform system of commer- 
cial relations. The convention met at Annapolis. 
As only five States were represented, the conven- 
tion adjourned after recommending to Congress 
and to the several States the appointment of com- 
missioners from all the States to meet at Philadel- 

1 Doyle, " History of the United States," p. 282. 

2 Frothingham, " Rise of the Republic of the United States," 
p. 579. 

3 Marshall, "Life of Washington," vol. iv. p. 416. 



CONSTITUTIONAL GOVERNMENT. 45 

phia, to devise such measures as might appear nec- 
essary " to render the Constitution of the federal 
government adequate to the exigencies of the 
Union." As Congress had failed to find ways and 
means to carry on the government, it coincided 
with the suggestion of the Annapolis convention, 
and recommended to the several legislatures to 
send delegates to the proposed convention, for the 
purpose of revising the Articles of Confederation, 
and of reporting to Congress and the several legis- 
latures the result of their deliberations. Delegates 
were appointed by all the States with the excep- 
tion of Rhode Island. Although the time desig- 
nated for the convention to meet was the four- 
teenth of May, it was not till the twenty-fifth that 
a sufficient number of States were present to com- 
plete the organization of the convention. 

" Rhode Island, small in territory and in numbers, but fa- 
vorably situated for the pursuits of commerce, had strenuously 
resisted every effort to enlarge the powers of the Union. Ever 
since the Declaration of Independence, the people of that 
State had clung to the opportunity, afforded by their situa- 
tion, of taxing the contiguous States, through their consump- 
tion of commodities brought into its numerous and conven- 
ient ports." — Curtis, " History of the Constitution," vol. ii. p. 24. 

The Constitutional Convention. — The States in se- 
lecting delegates chose their most illustrious citi- 
zens, men distinguished for their talents and public 
services, who " were identified with the heroic and 
wise counsels of the Revolution." Washington 
was chosen president. Although the convention 
was assembled for the purpose of merely revising 
the Articles of Confederation, it was determined, 



46 THE GOVERNMENT OF THE UNITED STATES. 

after full consideration, that amendments to or 
alterations in the existing Articles would be wholly 
inadequate to the needs of the United States, and 
that an entirely new and stronger government 
ought to be established. After a long and at times 
bitter discussion, the present Constitution was 
framed, as the result of a spirit of amity and of 
mutual difference and concession, 1 and it was pro- 
vided that the ratification of the conventions of 
nine States should be sufficient for the establish- 
ment of the Constitution, between the States so 
ratifying the same. To have required a unani- 
mous adoption would have been fatal to the new 
Constitution, as it had been to amendments to the 
Articles of Confederation. The usage under the 
Confederation of requiring the assent of nine States 
to all questions of importance was followed. It 
took the convention nearly four months to com- 
plete its labors. Its sessions were held with closed 
doors, the members were solemnly pledged to se- 
crecy, and for many years what took place in the 
convention was not fully known. 

" The delegates were assuredly a most remarkable body of 
men. Hardly one among them but had sat in some famous 
assembly, had signed some famous document, had filled some 
high place, or had made himself conspicuous for learning, for 
scholarship, or for signal services rendered in the cause -of 
liberty. One had framed the Albany plan of union, some had 
been members of the Stamp Act Congress of 1763, the names 
of others appear at the foot of the Declaration of Independ- 
ence and at the foot of the Articles of Confederation ; two 

1 See " Address of the Constitutional Convention to Con- 
gress." 



CONSTITUTIONAL GOVERNMENT. 47 

had been presidents of Congress; seven had been, or were 
then, governors of States; twenty-eight had been members of 
Congress ; one had commanded the armies of the United 
States ; another had been superintendent of finance ; a third 
had repeatedly been sent on important missions to England, 
and had long been minister to France." — McMaster, The Cen- 
tury, September, 1887. 

Dissensions in the Convention. — At the very outset 
grave and serious difficulties were encountered. 
Some of the delegates favored a national form of 
government that would completely override the 
State governments, while others were opposed to 
anything that would tend to weaken State sover- 
eignty. How to adjust the interests and rivalries 
of large and small States, free and slave, agricult- 
ural and commercial, was a labor of exceeding 
delicacy and very great difficulty. Even Wash- 
ington said he almost despaired of seeing a favor- 
able issue of the proceedings, and therefore re- 
pented having any agency in the business. 1 Frank- 
lin became so alarmed at the state of feeling 
exhibited in the convention that he arose and pro- 
posed henceforth the sessions should be opened 
with prayer, for now there was no hope of help 
except from Heaven; the wit of man was ex- 
hausted. 2 Finally, better counsels prevailed, and by 
mutual concessions, in spite of great diversity of 
opinion, the present Constitution of the United 
States received the signature of nearly all the del- 
egates. Only a lofty patriotism and a strong 
sense of the evils from which the nation was suffer- 

1 A letter to Hamilton, July 10, 1787. 

2 Elliot, " Debates/' vol. v. p. 254. 



48 THE GOVERNMENT OF THE UNITED STATES. 

ing and of the dangers of its present condition 
could have led the different parties to make such 
sacrifices of their own wishes as were needful. 1 

1. 4; It appears to me little short of a miracle that the dele- 
gates from so many States, differing from each other in their 
manners, circumstances, and prejudices, should unite in form- 
ing a system of national government so little liable to well- 
founded objections." — Washington. 

2. " Of those who signed, probably there was not one to 
whom all the provisions of the instrument were satisfactory; 
but gradually matured as it had been, in a four months' discus- 
sion, by a compromise of contending interests and opinions, it 
was accepted as the best that circumstances admitted, and as 
promising, on the whole, an improvement on the old confeder- 
ation." — Hildreth, " History of the United States," vol. iii. 
p. 526. 

Adoption of the Constitution.— After the Constitu- 
tion was framed and transmitted to Congress, it 
was submitted to the States for their adoption 
or rejection. Conventions composed of delegates 
chosen by the people were held in each State to 
consider and pass upon its provisions. After long 
debates and many warm discussions, and in the 
face of much opposition, it was ratified by the nec- 
essary number of States, and the event was cele- 
brated all over the country with bonfires, proces- 
sions, and loud rejoicings, such as had never before 
been witnessed in America. As the Constitution 
was adopted by the people through their delegates, 
it is very properly declared in the Preamble, " We, 
the people of the United States .... do ordain and 
establish this Constitution for the United States of 
America." Thus was achieved one of the grandest 

Doyle, " History of the United States," p. 286. 



CONSTITUTIONAL GOVERNMENT. 49 

triumphs in the history of a free people. It has 
been truly said that we owe a debt of gratitude to 
those great men who thus framed the Constitution 
and secured its adoption. 

1. The Constitution of the United States has been pro- 
nounced by Gladstone to be " the most wonderful work 
ever struck off at a given time by the brain and purpose of 
man." 

2. " The Constitution in its words is plain and intelligible, 
and is meant for the homebred, unsophisticated understand- 
ings of our fellow-citizens." — Dallas. 

Opposition to the Adoption of the Con^atution. — The 
adoption of the Constitution was vigorously op- 
posed in many of the States, and some of its pro- 
visions were bitterly assailed. North Carolina and 
Ehode Island held aloof from the Union till as- 
sured of its success. Some of the other States 
came in very reluctantly. Pamphlets, newspapers, 
and publications of various kinds were scattered in 
every direction, denouncing certain features of the 
instrument. Objections were made to members of 
Congress voting as individuals and not by States ; 
to the salaries of congressmen being paid out of 
the national treasury, thus rendering them inde- 
pendent of their own constituents ; to an oath of 
allegiance to the national government ; to so long 
a period as two years for the term of office of rep- 
resentatives ; to no religious tests being required 
for office ; to the maintenance of a standing army ; 
to Congress having uncontrolled jurisdiction over a 
district ten miles square as the seat of the national 
government. One delegate said he would not ob- 
ject to the Constitution, if the district was only 
3 



50 THE GOVERNMENT OF THE UNITED STATES. 

one mile square. But the great objection was the 
omission of a bill of rights. Moreover, the distin- 
guished men who assisted in framing the Consti- 
tution were derided. Washington was declared in 
one paper to be a born fool, and Hamilton and 
Madison were called mere boys. Franklin was 
said to be in his second childhood, while others 
were called visionary young men. The Constitu- 
tion was designated a " triple - headed monster," 
and pronounced to be " as deep and wicked a con- 
spiracy as was ever invented in the darkest ages 
against the liberties of a free people." A most 
remarkable series of essays, in support of the Con- 
stitution against the various objections urged to it, 
appeared in a New York journal, the Independent 
Gazetteer ', and were everywhere republished in the 
public journals. These essays were written by 
Hamilton, Madison, and Jay, most of them how- 
ever being contributed by Hamilton. Nothing 
published at that time was so widely read and so 
effectively contributed to the adoption of the Con- 
stitution. They were afterwards published in col- 
lected form, and are now familiarly known as the 
" Federalist," one of the most famous and suggest- 
ive treatises on government that has ever been 
published. Madison was the principal author of the 
Constitution ; Hamilton, its most brilliant advocate; 
Jay, a distinguished statesman and jurist. Those 
who supported the Constitution were known as Fed- 
eralists, those who were opposed as Anti-Federalists. 
In some of the cities, so bitter was the feeling be- 
tween the two parties that serious riots occurred. 



CONSTITUTIONAL GOVERNMENT. 51 

"In Providence the Federalists prepared a barbecue of oxen 
roasted whole, but a mob of farmers, led by three members of 
the State legislature, attempted to disperse them, and were 
with some difficulty pacified. In Albany the Anti-Federalists 
publicly burned the Constitution, whereupon a party of Fed- 
eralists brought out another copy of it and nailed it to the top 
of a pole, which they planted defiantly amid the ashes of the 
lire their opponents had made. Out of the proceeding there 
grew a riot, in which knives were drawn, stones were thrown, 
and blood was shed.'' — Fiske, The Atlantic, November, 1887. 

The First Election under the Constitution. — As soon 
as a sufficient number of States had given their as- 
sent to the Constitution, the necessary elections 
were held. Senators and representatives were 
elected, and Washington was unanimously chosen 
to be the first President of the United States of 
America. When, on his inauguration, he took the 
oath of office to " preserve, protect, and defend the 
Constitution of the United States," and the vast 
company of people heartily shouted, "Long live 
George Washington, President of the United 
States !" there was a feeling of general confidence 
and security, and a firm belief that the permanen- 
cy of the Republic was secured. 

The National Authority. — From the foregoing chap- 
ters it will be seen that the common or national 
authority has been, 

1. The government of Great Britain ; 

2. The Revolutionary Congress ; 

3. The Congress of the Confederation ; 

4. The government under the Constitution. 
At first there was no political union between the 
colonies, but they were independent of each other. 
As British subjects, the colonists acknowledged the 



52 THE GOVERNMENT OF THE UNITED STATES. 

authority of the government of Great Britain, and 
conceded the right of Parliament to legislate with 
reference to their foreign affairs ; but at the same 
time they claimed the right to manage their local 
affairs, and to legislate with reference to their local 
interests. The unjust demands of the English gov- 
ernment forced them to unite for common defence. 
Accordingly the Revolutionary Congress, composed 
of delegates from the several colonies, became to all 
intents and purposes the national government. It 
entered upon the exercise of comprehensive author- 
ity, and assumed the direction of the War of Inde- 
pendence. "Whatever was done, received the sup- 
port of the several colonies, although it had no legal 
or binding force. As the powers tacitly conferred 
upon the Revolutionary Congress would naturally 
cease at the close of the war, and the colonies be 
separated into independent States, Articles of Con- 
federation, prepared by Congress, were adopted by 
the States. It was, however, soon found that the 
Articles were inadequate for the purposes of gov- 
ernment. The Congress of the Confederation was 
powerless to make its authority either feared at 
home or respected abroad. Its greatest weakness 
was the lack of all coercive power. Finding that 
the Union could not long exist unless a stronger 
form of government was established, the States, 
after much discussion and mutual concessions, 
adopted the present form of government under 
the Constitution. 



THE GOVERNMENT UNDER THE CONSTITUTION 



CHAPTEE VI. 

THE CONSTITUTION. 

A Constitution Defined. — In every state there are 
some leading principles in accordance with which 
the powers of government are exercised, and the 
essential rights of the people protected. The prin- 
ciples collectively form what is called the constitu- 
tion of a state. 

Constitutions, Written or Unwritten. — Constitutions 
are either written or unwritten. A written consti- 
tution is a body of laws, contained in a written 
document, under which the government is con- 
ducted. The Constitution of the United States is 
an example. It has a definite form, is an orderly 
arrangement of principles in articles and sections, 
and is easily accessible. "With the exception of a 
few amendments, which have since been added, it 
was framed and adopted at one time. An unwrit- 
ten constitution is one having no definite form. 
The English constitution is an example. It does 
not consist of an orderly arrangement of articles 
and sections in a written document, but it is a body 
of principles scattered over a long period of time, 
and contained in acts of Parliament, concessions 
made by the kings, rules developed by the courts 
of law, and in established customs. Its growth 
has been gradual, its development can be traced 



56 THE GOVERNMENT OF THE UNITED STATES. 

back many centuries, and it is in process of con- 
stant change. Written constitutions are of mod- 
ern origin and are difficult of change; unwritten 
constitutions are of remote origin and subject to 
perpetual change. In the United States, a written 
constitution was a necessity. 

The Federal Constitution Supreme. — The Constitu- 
tion of the United States, as a body of principles, 
was first framed by delegates from the several 
States, and then submitted to the people of the 
States for their approval. After its adoption, it 
became the fundamental law of the land. All 
laws made in pursuance of its provisions, and all 
treaties made under its authority, are supreme, 
and the judges in every State are bound thereby, 
anything in the constitution or laws of any State to 
the contrary notwithstanding. 1 Any enactments 
of Congress or of the legislatures of the States 
which conflict with any of its provisions are void. 
The Constitution states the object of the people in 
establishing it, distributes the powers of govern- 
ment into departments and defines the powers of 
each, fixes the term of office of the members of the 
government and provides a method of calling them 
to account, forbids the exercise of certain powers, 
and makes provision for amendments. 

"The American Constitution of 1789 was a faithful copy, so 
far as it was possible to make one out of the materials in hand, 
of the contemporary constitution of England." — "Encyclo- 
paedia Britannica," vol. vi. p. 310. 

1 The Constitution, Article vi. cl. 2. 



THE CONSTITUTION. 57 

Officers Bound by Oath to Support the Constitution. — 
Senators and representatives and all executive and 
judicial officers of the United States are required to 
solemnly swear, or make affirmation, that they will 
support the Constitution. It is very proper that 
those who are intrusted with the responsibility of 
executing the powers of the national government 
should place themselves under a solemn obligation 
to execute their trusts according to the will of the 
people as expressed in the fundamental law of the 
land. The members of the State legislatures, and 
all executive and judicial officers of the several 
States, are also required to take a like oath or af- 
firmation. This is to secure the supremacy of the 
national government, whenever, in giving effect 
to the federal Constitution, the government of the 
United States and the State governments come in 
collision. In order not to exclude from office per- 
sons who have conscientious scruples against taking 
an oath, as, for example, the Quakers, an affirma- 
tion may be made instead of an oath. 

Constitutions Changeable. — Changes of more or less 
importance must necessarily occur from time to 
time in the constitution of a state. The changing 
circumstances and needs of a people demand cor- 
responding changes in the fundamental law. Ev- 
ery state must therefore have the power to change 
any of its laws. In Great Britain, Parliament is 
sovereign, and hence no law enacted by it can be 
questioned on the ground of unconstitutionality. 
If it is contrary to the principles embraced in the ' 
fundamental law, it acts as a modification of them. 



58 THE GOVERNMENT OF THE UNITED STATES. 

In America, sovereignty resides with, the people, 
and hence amendments to State constitutions are 
submitted to the people for approval. The Consti- 
tution of the United States also provides methods 
by which it may be amended. 

Amendments to the Constitution. — Amendments to 
the federal Constitution may be proposed in two 
ways : 

1. By Congress, whenever two thirds of both 

Houses deem it necessary ; 

2. By a convention called for this purpose by 

Congress, on the application of the legis- 
latures of two thirds of the several States. 
This method has never yet been made 
use of. 
Amendments, whether proposed by Congress or by 
a convention called for that purpose, before they 
can become a part of the Constitution, must be rati- 
fied by the legislatures of three fourths of the sev- 
eral States, or by conventions in three fourths, as 
the one or the other mode of ratification may be 
proposed by Congress. 1 To require the consent 
of all the States to an amendment, as under the 
Confederation, would practically make it impossi- 
ble to alter the Constitution. On the other hand, 
the unrestricted control of a mere majority of 
States over the fundamental law might give rise to 
serious evils. Although every government must 
be able to adapt itself to the changing necessities 
and interests of the people, frequent and too easy 

1 The Constitution, Article V. 



THE CONSTITUTION. 59 

changes are to be guarded against. The present 
method has thus far proved satisfactory. After an 
amendment has been adopted, its effect is to nul- 
ilify all provisions of State constitutions or State 
laws which conflict with it. One restriction is im- 
posed on the power to amend. It is that no State, 
without its consent, shall be deprived of its equal 
suffrage in the Senate. 1 This was inserted to sat- 
isfy the small States. 

" Experience has shown that the provisions of the Consti- 
tution about amendments are sufficient on the one hand to 
meet the demands of development, and on the other to put 
so strong a curb upon a restless search after novelty that the 
democratic republic has been more conservative in its funda- 
mental law than any state whatever of the European conti- 
nent. 1 ' — Yon Hoist, " Constitutional Law of the United States," 
p. 32. 

Unconstitutional Law. — An unconstitutional law is 
one that is opposed to the principles or rules of the 
constitution of the state. 2 In the United States, if 
the law is resisted, it goes before the courts, and a 
decision is reached by comparing the law in ques- 
tion with the fundamental law, the Constitution. 
"When an enactment is found to be inconsistent 
with the provisions of the Constitution, it is de- 
clared void. But in England no law passed by 
Parliament is unconstitutional or void, and the 
courts cannot declare it so. Even if Parliament 
passes a law which is absurd, the courts may in- 
terpret it according to their judgment, but can pro- 
nounce no further upon it. 

1 The Constitution, Article V. 

a Cooley, " Principles of Constitutional Law," p. 24. 



60 THE GOVERNMENT OF THE UNITED STATES. 

As the Constitution of the United States is based on Eng- 
lish laws, and the government was suggested by that of Great 
Britain, it is interesting to note the resemblance and the dif- 
ference between the two governments. 

Congress and Parliament. — It will be seen that there 
is a marked difference between the powers of Con- 
gress and the authority of Parliament. Congress 
is limited in the exercise of power. All laws passed 
by it must be in conformity with the superior law, 
the Constitution. If an enactment of Congress con- 
flicts with any provision of the Constitution, it may 
be declared void by the courts of justice. On the 
other hand, Parliament is politically omnipotent. 
Its enactments are of supreme authority. It is al- 
ways within its power to change or alter the con- 
stitution of the realm. In reality every statute 
passed by Parliament becomes a part of the Eng- 
lish constitution, and no court can declare any of 
its acts unconstitutional. Its power is absolute and 
without control. 

1. "The power and jurisdiction of Parliament," says Sir 
Edward Coke, " is so transcendent and absolute that it cannot 
be confined either for causes or persons within any bounds." 

2. " It is a fundamental principle with the English lawyers, 
that Parliament can do everything, except making a woman a 
man, or a man a woman." — De Lolme, " Constitution of Eng- 
land," p. 102. 

The Preamble of the Constitution. — The preamble of 
the Constitution states the purpose for which the 
Constitution was framed, and affords a key to a 
proper interpretation of the provisions of the in- 
strument itself. It reads as follows : " We, the peo- 
ple of the United States, in order to form a more 



THE CONSTITUTION. 61 

perfect union, establish justice, insure domestic tran- 
quillity, provide for the common defence, promote 
the general welfare, and secure the blessings of lib- 
erty to ourselves and our posterity, do ordain and 
establish this Constitution for the United States of 
America." For these high purposes was the Con- 
stitution ordained and the government established. 1 
Departments of Government. — The national govern- 
ment is vested by the Constitution in three depart- 
ments, the legislative, the executive, and the judi- 
cial. The legislative department makes the laws, 
the judicial interprets them, and the executive car- 
ries them into effect. No officer belonging to one 
department can exercise the powers properly be- 
longing to any other. The officer whose duty it is 
to execute the laws cannot decide the guilt or in- 
nocence of those accused of breaking the laws, and 
those who make the laws are not allowed to apply 
or carry them into execution. The great safeguard 
of all free governments is to keep these three de- 
partments as distinct and separate as possible. 
Wherever this division of power has existed, there 
has been the greatest amount of individual and po- 
litical liberty. When the legislative, executive, and 
judicial functions are exercised by one person, the 
government becomes a despotism, and there can be 
no public liberty. 

1. "The exercise of power, whether by an individual or a 
nation, is naturally divided into thinking, judging, and doing. 
Action implies all these : thought to originate, will and force 

1 Pomeroy, " Constitutional Law," p. 109. 



62 THE GOVERNMENT OF THE UNITED STATES. 

to execute a conceived purpose, judgment to compare it with 
rules of conduct." — Fisher, " Trial of the Constitution," p. 41. 

2. " The accumulation of all powers, legislative, executive, 
and judicial, in the same hands, whether of one, a few, or many, 
and whether hereditary, self-appointed, or elective, may just- 
ly be pronounced the very definition of tyranny." — Madison, 
" The Federalist," p. 374. 

Relation of these Departments to One Another. — Al- 
though these three departments are in a certain 
sense distinct, and the functions of each are essen- 
tially different, yet they are so related to each other, 
and dependent upon one another, that each would 
practically be powerless without the aid of the 
other two. For example, after the legislative de- 
partment has made laws, these laws would be of 
little avail unless carried into effect by the execu- 
tive department. Of what use would it be for the 
judicial department to expound the laws and apply 
them to individual cases, unless its decisions were 
carried into effect ? Congress may pass laws, but 
it cannot execute them. The judiciary may ex- 
pound the laws, but it cannot make or execute 
them. The President can execute the laws, but he 
can neither make nor expound them. Thus each 
department is dependent on the other two, and can 
do but little without their aid. 

1. "The maxim which lies at the foundation of our govern- 
ment is that all political power originates with the people. 
But since the organization of government it cannot be claimed 
that either the legislative, executive, or judicial powers, either 
wholly or in part, can be exercised by them. By the insti- 
tution of government the people surrender the exercise of all 
these sovereign functions of government to agents chosen by 
themselves, who at least theoretically represent the supreme 
will of their constituents. Thus all power possessed by the 



THE CONSTITUTION. 63 

people themselves is given and centred in their chosen repre- 
sentatives." — Davis, " Gibson v. Mason," 5 Nevada, p. 291. 

2. " The first maxim of a free state is that the laws be made 
by one set of men and administered by another ; in other words, 
that the legislative and judicial characters be kept separate. 
When these officers are united in the same person or assembly, 
particular laws are made for particular cases, springing often- 
times from partial motives and directed to private ends. Whilst 
they are kept separate, general laws are made by one body 
of men, without foreseeing wiiom they may affect; and when 
made, they must be applied by the other, let them affect whom 
they will." — Paley. 



CHAPTEE VII. 

THE LEGISLATIVE DEPARTMENT. 

Legislative Power. — Although each department of 
the national government is in a certain sense inde- 
pendent of the other two, and each in its own sphere 
is supreme, the legislative or law-making depart- 
ment is the repository of most power. 1 It lays 
down general rules which are binding on the 
other departments. Its enactments are enforced 
by the executive department and interpreted by 
the judicial. At the commencement in a new state, 
neither executive nor court can do the work for 
which it was intended without some preparatory 
legislation. 2 

Functions of the Law-Making Department. — The 
principal function of the law-making department is 
to enact new laws, amend those which are inad- 
equate, and abolish those which are bad. Laws 
which at one time meet the wants of the day, at 
another are inadequate. Customs and conditions 
are constantly changing, and legislation is needed 
to meet these changing conditions. It is also the 
proper office of a legislative assembly to watch and 
criticise the members of the government, hold pub- 
lic officers responsible for the proper performance 

1 Cooley, "Principles of Constitutional Law," p. 54. 

2 Woolscy, " Political Science," vol. ii. p. 261. 



THE LEGISLATIVE DEPARTMENT. 65 

of their duties, censure them if found remiss, and 
expel them from office if they abuse their trusts. 

Legislation and the General Welfare. — The effect of 
good or bad legislation upon the general welfare is 
so great that common prudence would naturally 
suggest that wise and able men should be chosen 
to discuss and decide questions affecting the happi- 
ness and prosperity of the general body of citizens. 
It, however, too frequently happens that persons 
without a sufficient amount of intelligence or knowl- 
edge are chosen as legislators, and that the law- 
making power is under the control of interests not 
identical with the general welfare of the people at 
large. 

"Men are generally more honest in their private than in 
their public caj^acity ; and will go greater lengths to serve a 
party than when their own private interest is alone concerned. 
Honor is a great check upon mankind. But where a con- 
siderable body of men act together, this check is in a great 
measure removed." — Hume. 

Division of the Subject. — For the sake of conven- 
ience, the facts relating to the legislative depart- 
ment will be grouped under the following heads : 

1. The two Houses of Congress ; 

2. The organization of Congress and the priv- 

ileges of members ; 

3. Congress at work ; 

4. The powers of Congress ; 

5. Restrictions upon the powers of Congress. 
Legislative Powers, where Vested. — All the legisla- 
tive powers granted by the Constitution are vested 
in a Congress of the United States consisting of 
two Houses, a Senate and a House of Eepresenta- 



66 THE GOVERNMENT OF THE UNITED STATES. 

tives. The Congress of the Confederation consisted 
of but one House. The plan of two Houses was 
adopted by the Constitutional Convention, partly 
because it was the general conviction that if the 
national legislature should be composed of two 
branches, one branch would act as a check upon 
the other, and thus prevent hasty and oppressive 
legislation; and partly to prevent the fatal con- 
flict which might one day take place between a 
single legislative body and a single executive. 1 As 
each House differs in organization, term of office, 
mode of choice, and qualifications of membership, 
it is apparent that this division of power is a wise 
one. 

The division of the national legislature into two branches is 
a copy of the English Parliament. This is composed of the 
House of Commons and the House of Lords. 

THE HOUSE OF REPRESENTATIVES. 

The Popular Branch. — This branch of the national 
legislature is composed of members elected every 
second year by the people of the several States. It 
is a more numerous body than the Senate. As the 
members are chosen directly by the people them- 
selves for a short term of two years, they are more 
likely to represent the .prevailing opinions of the 
time on public questions. It is reasonable to sup- 
pose that they will guard with especial care the 
interests of the people, resist all encroachments 
on their rights, seek to redress grievances, and 
assert the supremacy of the people in national 

Bancroft, " History of the Constitution," vol. ii. p. 16. 



THE LEGISLATIVE DEPARTMENT. 67 

affairs. The House of Eepresentatives is very prop- 
erly called the popular branch of the legislature. 

Under the Confederation, members of Congress were elected 
by the State legislatures, in all the States except two. 

Qualifications of Electors for Members of the House of 
Representatives. — An elector is one who has the right 
to vote. At the time when the Constitution was 
adopted, the qualifications of electors varied in dif- 
ferent States. Some States required that every 
person desiring to vote should own property, in 
other States only those w x ere entitled to vote who 
paid taxes, while in others the right of suffrage was 
nearly universal. The Constitutional Convention 
decided, after much discussion, owing to the diffi- 
culty of agreeing upon any uniform rule of voting, 
that the same qualifications should be required as 
the constitution of each State required for electors 
of the most numerous branch of the State legisla- 
ture. The Constitution does not, therefore, confer 
the right to vote on any one. This right is defined 
by, and is under the control of, the States themselves. 
They each declare who of their inhabitants shall 
vote for members of the popular branch of the 
State legislature, and such persons are entitled to 
vote for members of the popular branch of Con- 
gress. One limitation is placed, however, on the 
action of the States, by the fifteenth amendment, 
which forbids the denying to citizens of the United 
States the right to vote on account of race, color, 
or previous condition of servitude. This was de- 
signed to prevent discriminations against persons 
of African descent. Apart from this one limita- 



G8 THE GOVERNMENT OF THE UNITED STATES. 

tion, the right of the States to regulate the fran- 
chise, according to their own circumstances and in- 
terests, is not in the least abridged. 

Some Qualifications Required by the States. — For- 
merly the greatest diversity existed regarding the 
qualifications of electors, owing to the different cir- 
cumstances and temper of the people in the differ- 
ent States. Even now there is no complete uni- 
formity. All States, however, require, 

1. That electors shall be male citizens, though 

in some States a declaration of intention 
to become a citizen is sufficient. 

2. That they shall be residents, for a specified 

time, of the State and the district where 
they vote. The time varies in different 
States. 

3. That they shall be twenty-one years of age. 
Other qualifications are required in some States, as, 
for example, in Massachusetts the ability to read 
and write, and in Pennsylvania the payment of 
taxes ; but the tendency of late has been to require 
as few qualifications as will be consistent with the 
public safety. A residence for a certain time in an 
election district is required in order to prevent ille- 
gal voting. The purity of elections is the better 
preserved by obliging electors to vote where they 
live and are known. A check is thus placed on the 
importation of voters into doubtful districts, in 
order to secure the election of unprincipled candi- 
dates. 

Qualifications of Representatives. — Three qualifica- 
tions are required by the Constitution : 



THE LEGISLATIVE DEPARTMENT. 69 

1. Each representative must have attained the 

age of twenty-five years. 

2. He must have been seven years a citizen of 

the United States. 

3. When elected, he must be an inhabitant of 

the State in which he is chosen. 
The first qualification is necessary in order to secure 
that wisdom and experience which is indispensable 
in the management of public affairs. The second 
excludes from the House of Representatives those 
who have not lived long enough in the United 
States to become familiar with its institutions, and 
with the interests and needs of the country. The 
third secures to each State representatives who by 
actual residence have obtained an intelligent knowl- 
edge of the interests of the sections in which they 
reside. It has been the almost universal custom of 
free states to exclude foreigners from holding any 
office, through fear of foreign influence. In Eng- 
land an alien, even though naturalized, cannot be 
a member of either House of Parliament. A dif- 
ferent policy has prevailed in this country. 

Apportionment of Representatives. — Representatives 
are apportioned among the several States according 
to the population of each. Every ten years, com- 
mencing with the year 1790, Congress is required 
to make provision for an enumeration of the people 
of the United States. This enumeration does not 
include Indians, unless they are taxed. After the 
census is taken, and Congress has decided how 
many members shall compose the popular branch, 
the next step is to apportion these among the sev- 



70 THE GOVERNMENT OF THE UNITED STATES. 

eral States. This is done by dividing the whole 
number of people in the States by the number of 
representatives to be chosen, no regard being paid 
to the population of the territories. The result ob- 
tained is what is called the ratio of representation, 
or the number of inhabitants entitled to one repre- 
sentative. Dividing the population of each State 
by the ratio of representation, will give the number 
of representatives to which each State is entitled. 
In making this last division, it will be found that 
there will be a remainder, sometimes small and at 
other times large. Each State will consequently 
have a number of persons unrepresented, and owing 
to these remainders the number of representatives 
will be less than the number fixed by Congress. 
This defect is partially remedied by assigning to 
the States having the largest remainders the re- 
maining representatives. 

1. As the census is taken every ten years commencing with 
1790, it will be easily remembered that whenever the number 
of the year ends in a cipher, the census is taken. 

2. The following may illustrate more clearly the method 
of apportionment. The population of the United States, not 
including that of the territories, is 49,371,340, according to 
the census of 1880. At present the number of representatives, 
as fixed by Congress, is 325. Dividing 49,371,340 by 325, we 
have 151,912, the ratio of representation. The population of 
the State of New York is 5,082,871. Dividing 5,082,871 by 
151,912, the quotient is 33, and the remainder 69,775. For 
this remainder the State is given an additional representative. 
New York has, therefore, thirty-four representatives. 

Congressional Districts. — After representatives have 
been apportioned among the several States, each 
State is divided by the State legislature into as many 






THE LEGISLATIVE DEPARTMENT. 71 

districts as it has representatives. These districts 
are called congressional districts, and are numbered ; 
as, first congressional district, second congressional 
district, etc. Each congressional district contains 
the prescribed number of inhabitants entitled to 
representation, and elects its own representative. 
When a State is assigned an additional representa- 
tive, and the legislature fails to redistrict the State 
so as to form an additional congressional district, 
the representative is voted for on a general ticket ; 
that is, by the State at large, and is known as con- 
gressman at large. 

Two Limitations. — Two limitations are imposed by 
the Constitution on the action of Congress in ap- 
portioning representatives : 

1. Every State must have at least one repre- 

sentative. 

2. The number of representatives must not 

exceed one for every thirty thousand 
persons. 

If Congress were allowed to fix the ratio of rep- 
resentation without any restriction whatever, it 
might make it so large that small States would be 
deprived of all representation in the popular branch 
of the legislature. On the other hand, if the ratio 
should be less than thirty thousand, the House would 
become so unwieldy, by reason of its number, that 
the transaction of business would be greatly im- 
peded. 

Difficulty in Adjusting the Basis of Representation. — 
One of the most difficult matters to adjust satisfac- 
torily in the Constitutional Convention w T as the ba- 



72 THE GOVERNMENT OF THE UNITED STATES. 

sis of representation. The small States desired equal 
representation with the large; the Southern States 
demanded that the slaves should be oounted as a 
pari of their population in apportioning represent- 
atives, and the Northern States contended for ;i 
representation of free persons only. If the same 
representation was given to t ho small States as to 
(ho Large, it was olaimed that the large States would 
not have that Lnfluenoe in Legislation which their 
interests warranted. To count, the slaves would 
give great political influenoe in Legislation to t ho 
Southern States. If , for example, a State having 
as many slaves as free persons were allowed to oount 
the slaves as part of its population in the apportion- 
ment of representatives, as slaves were not allowed 
to vote, the white voters in the South would have 
twice the number of representatives that (hey would 
be entitled to if they did not own property in slaves. 

In other words, a, white man in (he South would 

really count. For more than aneleotor in (he North. 
The discussion became at times so animated that it 

seemed as though the convention would break up 

in disorder, and the delegates return to their States 

without, accomplishing the Object Tor which they 

had assembled. Finally, by making mutual con- 
cessions, it> was agreed that representatives and 
direct taxes should bo apportioned among the sev- 
eral States according to (ho free population and 
three Bfths of the slaves, [n other words, to sat 
isfy the slaveholding States, five Blaves were to be 
counted as three freemen ; and to reoonoile the uon- 
slaveholding States to this agreement, direct taxes 



Tin; LEGISLATIVE DEPARTMENT. 73 

wore to be apportioned in the same manner as rep- 
resentatives. With the abolition of slavery the 
plan of apportionment was changed by a constitu- 
tional amendment. Representatives arc now ap- 
portioned among the several States according to 
their respective numbers, counting the whole num- 
ber of persons in each State, excluding Indians not 
taxed. 1 

THE BEN ATE. 

The Upper House. — The Senate is composed of two 
senators from each State, chosen by the State legis- 
lature for a term of six years. It is sometimes called 
the Upper Souse, to distinguish it from the House 
of Representatives, which is called the Lower House. 
The Senate is composed of men of greater experi- 
ence in public' affairs than the members of the House 
of Representatives, It is a less numerous body, less 
subject to change, more conservative and stable, and 
less liable to be influenced by popular excitement. 
To represent one's State in this honorable body is 
the ambition of able men, and no greater political 
honor than this can be conferred by a State upon 
any of its citizens. Members of the Lower House 
naturally covet a seat in the Senate as a reward for 
long and faithful services. In consideration of the 
fact that the smaller States consented to the appor- 
tionment o( representatives according to popula- 
tion, the larger States consented that every State, 
without any regard to its population, should have 
equal representation in the Senate. In the Oon- 

1 "Amendments," Article XIV. see. B, 
4 



74 THE GOVERNMENT OF THE UNITED STATES. 

gress of the Confederation each State had an equal 
vote with every other. Under the Constitution, 
each senator as well as each representative has one 
vote. Two senators are designated so that in case 
one is absent, either on account of sickness or for 
any other cause, the State will not be wholly un- 
represented. 

Changes in the Senate Gradual. — In order to avoid 
frequent and radical changes in the complexion of 
the Senate, and to secure all the advantages which 
experience and long training can alone bring, not 
only was the term of office of senators fixed at six 
years, but it was also provided by the Constitution 
that the term of office of only one third of the mem- 
bers should expire at one time. At the expiration 
of every second year the seats of one third of the 
senators are vacated. If new members are elected, 
there will still be one third of the remaining mem- 
bers who have had at least an experience of two 
years, and the other third will have served not less 
than four years. Thus changes in the Senate are 
gradual, and unaccompanied by the radical and un- 
expected movements Avliich frequently characterize 
the House of Kepresentatives. 

Senators, How Classified. — When the senators first 
convened after the adoption of the Constitution, 
they were divided as nearly as possible into three 
equal classes, and in such a manner that the sena- 
tors from the same State should not be in the same 
class. It was then determined by lot which class 
should vacate their seats at the expiration of the 
second year, which at the expiration of the fourth 



THE LEGISLATIVE DEPARTMENT. 75 

year, and which at the expiration of the sixth year. 
The classes were numbered first, second, and third. 
By this arrangement the term of office of senators 
of the first class would expire in 1791, 1797, 1803, 
etc. ; of the second, in 1793, 1799, 1805, etc. ; of the 
third, in 1795, 1801, 1807, etc. On the admission 
of a new State to the Union, the two senators are 
placed in different classes, so that their term of 
office will not expire at one time, and the classes 
may be kept as nearly equal in number as .pos- 
sible. 

Qualifications of Senators. — As certain requirements 
were deemed requisite for admission as members of 
the House of Kepresentatives, how much greater 
reason was there for requiring such qualifications 
of senators as the greater dignity of the Senate 
and the interests of the States demanded. Accord- 
ingly the following qualifications are required by 
the Constitution : 

1. Every senator must have attained the age 

of thirty years. 

2. He must have been nine years a citizen of 

the United States. 

3. When elected, he must be an inhabitant of 

the State for which he is chosen. 

RELATING TO BOTH HOUSES. 

Election of Senators and Representatives. — The Con- 
stitution provides that the times, places, and man- 
ner of holding elections for senators and represent- 
atives shall be prescribed in each State by the State 
legislature : but, in order to secure to the national 



76 THE GOVERNMENT OF THE UNITED STATES. 

government a superintending control over these 
elections, and to guard against the danger of any 
State legislature neglecting to make suitable pro- 
vision for holding them, it is further provided that 
Congress may, at any time, make or alter such reg- 
ulations, except as to the places of choosing sena- 
tors. 1 Inasmuch as senators are elected by State 
legislatures, it would manifestly be improper for 
Congress to prescribe the places where the legis- 
latures should hold their meetings. 

The Time and Mode of Election. — By act of Con- 
gress it is provided that the election of representa- 
tives shall be on the Tuesday next after the first 
Monday in November, in the year 1876, and every 
two years thereafter, in fixed geographical districts. 
This time does not, however, apply to any State 
whose constitution has fixed some other day. The 
election, therefore, occurs in November of every 
even year, and on the same day in nearly all the 
States. All votes for representatives must be on 
either written or printed ballots. The time desig- 
nated by Congress for the election of senators is the 
second Tuesday after the meeting and organization 
of the legislature. In each house each member 
names, by a viva voce vote, some one for senator. 
At twelve o'clock on the following day the two 
houses convene in joint assembly, and if the same 
person has received a majority of votes of each 
house he is declared elected. If this is not the case, 
the joint assembly proceed to choose some one by 

1 The Constitution, Article I., sec. 4, cl. i. 



THE LEGISLATIVE DEPARTMENT. 77 

a viva voce vote, and the person who receives a ma- 
jority of all the votes of the joint assembly, a major- 
ity of the members of both houses being present, 
is declared duly elected. If no one receives such a 
majority on the first day, the joint assembly is re- 
quired to meet at noon of each succeeding day dur- 
ing the session of the legislature, and take at least 
one vote, until a senator is elected. If any vacancy 
occurs during the session, the legislature proceed to 
elect a senator on the second Tuesday after notice 
has been received of the vacancy. 

Vacancies. — If a vacancy occurs in the Senate by 
resignation or otherwise when the State legislature 
is not in session, the governor may make a tempo- 
rary appointment, the person thus appointed hold- 
ing the office till the next meeting of the legislature. 
To summon the legislature for the special purpose 
of filling a vacancy would occasion great incon- 
venience. In the House, when vacancies happen 
in the representation from any State, the governor 
of the State is required to order a new election 
in the congressional districts in which such vacan- 
cies occur. The representatives thus elected hold 
office only for the unexpired terms of their pred- 
ecessors. 

A Comparison. — The following comparison may be 
of service in remembering facts already given : 

1. Kepresentatives must have attained the age 

of twenty-five ; senators, thirty years. 

2. Representatives must have been seven years 

citizens of the United States; senators, 
nine years. 



78 



THE GOVERNMENT OF THE UNITED STATES. 



A foreigner must reside in this country five years before he 
can become a citizen, consequently he must have had a resi- 
dence of twelve years before he can be chosen as a representa- 
tive in Congress. To be qualified for a seat in the Senate, a 
residence of fourteen years is necessary. 



3. When elected, both representatives and sen- 

ators must be inhabitants of the State in 
or for which they are chosen. 

4. The House of Representatives is called the 

Lower House ; the Senate, the Upper 
House. 

5. Representatives are elected by congression- 

al districts ; senators, by State legisla- 
tures. 

6. Vacancies in the House are filled by a new 

election ; in the Senate, by the governor, 
if the State legislature is not in session. 

7. The term of office of representatives is two 

years ; of senators, six years. 

8. Representatives are apportioned among the 

States according to their population ; two 
senators are chosen by each State with- 
out reference to its population. 

9. The House of Representatives is called the 

popular branch of the legislature, its mem- 
bers being elected directly by the people ; 
it is a more numerous body than the Sen- 
ate, and represents more nearly the pre- 
vailing opinions of the day ; senators 
represent States, are less influenced by 
popular excitement, and are more con- 
servative in action. 






THE LEGISLATIVE DEPARTMENT. 79 

10. The Senate is considered an abler body than 
the House of Representatives, members 
of the Lower House, of long experience 
and great ability, being frequently pro- 
moted to the Upper House. 



CHAPTEK VIII. 

THE ORGANIZATION OF CONGRESS AND THE PRIVILEGES 
OF MEMBERS. 

Certain Powers. — There are certain powers which 
naturally belong to every legislative body, and 
without which there w^ould be w T anting that inde- 
pendence and efficiency which are indispensable to 
the proper performance of legislative functions. 
These are the right, 

1. To be the judge of the elections of its own 

members ; 

2. To determine the rules of its proceedings ; 

3. To punish its members for disorderly con- 

duct ; 

4. To expel a member for just cause ; 

5. To compel the attendance of absent mem- 

bers; 

6. To punish persons not members for con- 

tempt of its authority. 
The Elections, Returns, and Qualifications of Members. 
— Contests frequently arise between rival candi- 
dates as to the legality of an election, each claiming 
that he is entitled to a seat in Congress. Likewise 
the qualifications of persons claiming seats in either 
House may be called in question. It is therefore 
evident that there must be lodged somewhere a 
power to examine into disputed cases, and to de- 



THE ORGANIZATION OF CONGRESS. 81 

cide who are legally qualified and elected. Returns 
are certificates of election issued by the proper offi- 
cers, which are received as the evidence of a legal 
election. When the validity of an election is tested 
by an opposing candidate, either House may go be- 
hind the certificate of election, examine witnesses, 
and decide who has received a majority of legal 
votes. Until the matter is decided, the person hold- 
ing the certificate of election is a member of Con- 
gress, just as if there were no question about his 
election. If the power of determining who were 
legitimately chosen members were lodged in any 
other than the legislative body itself, it could not 
maintain its own independence. 

Rules of Procedure. — It is o£ vital importance to 
the general welfare that the business of the nation 
should be properly transacted, and that order and 
regularity should be preserved. Unless there should 
be some uniformity of proceeding in the transaction 
of business, irregularities and abuses would natu- 
rally follow. Forms and rules of procedure operate 
as a check on the actions of a majority, and they 
are frequently a protection to a minority against 
the abuse of power which successful majorities are 
apt to make use of. It is the custom of each newly 
elected House of Eepresentatives, at the beginning 
of its first session, to adopt the rules and regula- 
tions of the preceding House. 

Disorderly Behavior of Members. — Merely to make 

rules for the government of a legislative body would 

be of little avail, unless there was associated with 

this the power to punish members for disregarding 

4* 



82 THE GOVERNMENT OF THE UNITED STATES. 

these rules and for unbecoming conduct. Legis- 
lation cannot be properly carried on, unless order 
is maintained and violence checked. When mem- 
bers in time of excitement give way to outbursts 
of anger and to unparliamentary conduct, a call 
to order or a reprimand by the presiding officer 
is usually sufficient. But disorderly members are 
not only liable to censure, but to such punish- 
ment as the House to which they belong may 
deem proper. 

The Expulsion of Members. — In a case of aggra- 
vated misconduct, either House may expel a mem- 
ber. Neither House could properly perform its high 
functions, and preserve its dignity and reputation 
before the people, without this power. In order, 
however, to guard against the danger of a member 
being expelled, for the purpose of furthering the 
interests of a political party or of carrying through 
some corrupt measure, the Constitution requires the 
concurrence of two thirds of the members to justify 
expulsion. 

Power to Compel the Attendance of Members. — Un- 
less provision were made to compel the attendance 
of absent members whenever a quorum was not 
present, the wheels of legislation might at any time 
be blocked by the preconcerted absence of a num- 
ber of members. By the rules of each House, every 
member is required to be present during its sittings, 
unless excused or necessarily prevented. In the ab- 
sence of a quorum, the members present are author- 
ized by the Constitution to compel the attendance 
of the members who are absent. This is done in 



THE ORGANIZATION OF CONGRESS. 83 

such manner and under such penalties as each House 
may provide. 

Power to Punish for Contempt. — Although the power 
to punish offences committed against either House 
by persons not members is not specifically con- 
ferred by the Constitution, still the power exists 
by implication, and may be exercised by each House. 
Congress could not exercise the powers of legisla- 
tion and deliberation without the authority to en- 
force silence and good order among strangers, to 
expel intruders, to protect its members, and to in- 
flict punishment for contempt of its authority. If 
persons whose testimony was regarded as important 
should refuse to appear when summoned by either 
House, Congress would be unable to exercise some 
of its constitutional functions unless it had the 
power to compel the attendance of such persons. 
Refusal on the part of any one to comply with the 
commands of Congress is regarded as contempt, 
and exposes the offender to arrest and imprison- 
ment. Imprisonment cannot extend beyond the 
adjournment of Congress. 

Other Provisions. — The Constitution furthermore 
provides, 

1. That Congress shall assemble at least once 

each year ; 

2. That a majority of each House shall consti- 

tute a quorum to do business ; 

3. That neither House shall adjourn for more 

than three days, without the consent of 
the other ; 

4. That each House shall keep a journal of its 



84 THE GOVERNMENT OF THE UNITED STATES. 

proceedings, and that the yeas and nays 
shall be entered on the journal, at the de- 
sire of one fifth of the members present. 

Meetings of Congress. — Congress is required to as- 
semble at least once in every year, on the first Mon- 
day in December, unless they shall by law appoint 
some other day. Annual sessions are therefore ob- 
ligatory, and the meetings of Congress are neither 
dependent on the will of the chief executive nor the 
caprice of members or factions. The business of 
the nation will thus be less likely to be neglected, 
and the liberties of the people will be more care- 
fully guarded. On extraordinary occasions, as, for 
example, unexpected calamities, financial distress, 
insurrections, foreign complications, and other im- 
portant exigencies, the President may convene both 
Houses or either of them. 

A Quorum. — A majority of each House constitutes 
a quorum to do business. If less than a majority 
were allowed to transact business, laws might be 
passed to promote local or special interests, at the 
expense of the general welfare. When a quorum 
is not present, a smaller number may adjourn from 
day to day, in order to prevent a legal dissolution 
of the body, and may compel the attendance of ab- 
sent members. 

Adjournments. — Neither House, during the session 
of Congress, can, without the consent of the other, 
adjourn for more than three days, nor to any other 
place than that in which the two Houses are sit- 
ting. 1 As every bill, to become law, must receive 

1 The Constitution, Article I. sec. 5, cl. 4. 



THE ORGANIZATION OF CONGRESS. 85 

the approval of both Houses, if either body could 
adjourn at its pleasure, legislation would be sus- 
pended. To allow either House, through any dis- 
agreement, to sit in separate localities, would crip- 
ple the operations of the government, and endanger 
the peace of the Union. In case of a disagreement 
between the two Houses with respect to the time 
of adjournment, the President may adjourn both 
Houses to such time as he may think proper. This 
power no President has seen fit to exercise. 

As the Confederation was without a seat of government, 
Congress was compelled to assemble at some one of the princi- 
pal cities of the Union. The fear was expressed in the Consti- 
tutional Convention that a difference of interests between the 
branches of the proposed Congress might lead to a disagree- 
ment as to the place of their future sessions. 

The Journal. — In order to give publicity to the 
proceedings of Congress, and to furnish the public 
with reliable information as to what is being done, 
each House is required to keep a journal of its pro- 
ceedings, and from time to time publish the same, 
except such parts as in their judgment require se- 
crecy. 1 It is also provided that the yeas and nays 
of the members of either House may be called on 
any question and entered on the journal, at the de- 
sire of one fifth of those present. Members can thus 
be held responsible, by those whose interests they 
represent, for their votes on important questions, 
and be called to account at any time by their con- 
stituents. As the calling of the roll consumes con- 

1 The Constitution, Article I. sec. 5, cl. 3. 



86 THE GOVERNMENT OF THE UNITED STATES. 

siderable time, and might be resorted to by one or 
two members in order unnecessarily to delay action, 
the yeas and nays can only be called at the desire 
of one fifth of the members present. Sometimes a 
minority, bitterly opposed to a measure, will delay 
action, and even defeat an obnoxious bill, by repeat- 
edly insisting on the calling of the roll. This is 
termed " filibustering," and at times is kept up all 
night, and for several days in succession. 

It is a common custom for Congress to grant leave to its 
members to insert speeches in the official record of its pro- 
ceedings which it has never heard. These appear in the daily 
newspaper printed by Congress, called the Congressional Record, 
and are sent by members, in pamphlet form, to their constitu- 
ents. This practice arose from the want of time for speech- 
making in so large a body as the House of Representatives, 
and from a desire to appear on the record in public discus- 
sions. It is said that at one time a speech was inserted in the 
form of a poem. A government printing-office is maintained 
by Congress to publish its proceedings and all public docu- 
ments. 

Privileges of Members. — The privileges of members 
are, 

1. Freedom from arrest, except for treason, 

felony, and breach of the peace ; 

2. Freedom of speech and debate. 
Treason, felony, and breach of the peace include 

all criminal offences, and consequently freedom from 
arrest extends only to civil actions. 

Freedom from Arrest. — Senators and representa- 
tives are in all cases, except for criminal offences, 
privileged from arrest while going to or returning 
from any session of Congress, and during the con- 
tinuance of the session. If members of Congress 



THE PRIVILEGES OF MEMBERS. 87 

could at any time be arrested, advantage might be 
taken of this by political enemies to detain, on any 
pretence, active and able members, when their pres- 
ence was most needed, and to intimidate others 
in the performance of their duties. Freedom from 
arrest is not, however, designed simply to protect 
the personal independence of members, but to se- 
cure for each State and congressional district the 
votes and present services of its senators and rep- 
resentatives in the national legislature. On the 
other hand, members ought not to be exempt from 
arrest for crimes of violence and breaches of the 
peace. 

Freedom of Speech and Debate. — In the exercise of 
the powers of legislation, the interests of the State 
require that members of Congress should be pro- 
tected in the full and free expression of their opin- 
ions regarding either measures or persons. With- 
out this privilege, independence in judgment and 
action would not be possible. If members were 
liable to prosecution for anything said in the exer- 
cise of their official duties, freedom of speech would 
be checked by the fear of prosecution, and the dread 
of offending wealthy men or powerful corporations, 
and there would be wanting that fearlessness and 
independence in debate which the importance of 
public interests demand. Freedom of speech is lim- 
ited to what is said in Congress, and does not cover 
what may be said elsewhere. 

Compensation of Members. — There was considerable 
diversity of opinion in the Constitutional Convention 
as to whether members of Congress should receive 



88 THE GOVERNMENT OF THE UNITED STATES. 

any compensation for their services. It was main- 
tained by some that if compensation were allowed, 
a seat in Congress would be sought with a view to 
the compensation alone. On the other hand, it was 
maintained that unless some compensation was giv- 
en, able men of limited means would be unable to 
accept of a seat in the national legislature, and thus 
the country would be deprived of their services. 
There was also difference of opinion as to the way 
in which members should be paid, if paid at all. 
Some thought that they should be paid by their 
respective States ; others favored the plan of pay- 
ing senators and representatives out of the treas- 
ury of the United States. This last method was 
finally decided upon, in that it would avoid inequal- 
ities in allowances, secure promptness of payment, 
and not make members dependent on the mere 
whims of their constituents for support. The 
amount of compensation is wisely left to be deter- 
mined from time to time by Congress. A compen- 
sation that might have been adequate at the time 
the Constitution was framed would be wholly 
inadequate at the present time. Frequent elec- 
tions hre an effective check against any extended 
abuse of this power. A few years ago (1873) the 
salary of congressmen was raised by act of Con- 
gress from five thousand dollars to seven thousand 
five hundred. So emphatically did the people con- 
demn this law that it was subsequently repealed. 

1. " To be ascertained by law " is another form of expression 
for " to be determined by law," that is, by act of Congress. See 
Article I. sec. 6, cl. 1. 



THE PRIVILEGES OF MEMBERS. 89 

2. Members of Parliament receive no compensation. At one 
time those from cities received two shillings a day. Some of 
the towns petitioned Parliament to be excused from sending 
members, as they were not able to bear the expense, on account 
of being engaged in making some public improvements. 

Disqualifications of Members. — The Constitution 
provides, 

1. That no senator or representative shall, 

during the time for which he is elected, 
be appointed to any civil office under the 
United States which shall have been cre- 
ated, or its emoluments increased, during 
such term ; 

2. That no person holding any office under the 

United States shall be a member of either 
House during his continuance in office. 1 
The first disqualification is to prevent the creation 
of new and lucrative offices for the personal advan- 
tage of members, and to remove as far as possible 
the temptation to increase the compensation of cer- 
tain offices for a like purpose ; the second is to pre- 
vent the general government from obtaining an un- 
due influence in the national legislature. 

The fourteenth amendment makes disloyalty a disqualifica- 
tion for holding office. Congress has, however, in most cases 
removed this disability. Congressmen also come within the 
provision of Article I. sec. 9, cl. 8, which forbids any federal 
officer to accept, without the consent of Congress, of any pres- 
ent, emolument, office, or title of any kind whatever, from any 
king, prince, or foreign state. 

1 The Constitution, Article I. sec. 6, cl. 2. 



CHAPTER IX. 

CONGRESS AT WORK. 

Necessity of Organization. — Before any business can 
be transacted by any legislative body, composed as 
it usually is of many members, differing in views 
and representing various political and local interests, 
it becomes necessary to effect some kind of organi- 
zation, and to adopt certain forms and modes of 
procedure. Without a presiding officer to give di- 
rection to the deliberations of an assembly, without 
proper officers to keep a record of the proceedings, 
and to perform duties that the needs of deliberative 
bodies naturally give rise to, and without commit- 
tees to which bills can be referred for consideration 
so that they can be more readily acted upon by a 
large body, but little progress could be made in 
legislation. 

Presiding Officers of Each House. — The presiding 
officer of the Senate is called the president ; of the 
House of Representatives, the speaker. The Vice- 
President, by virtue of his office, is president of the 
Senate; the speaker is chosen from among the 
members of the House of Representatives. It is 
the duty of each to preserve order, and to see that 
business is transacted in the manner prescribed by 
the rules of each House. 

President of the Senate. — The question may natu- 



CONGRESS AT WORK. 91 

rally arise, Why should not the president of the 
Senate be selected from among the members of 
the Senate, as the speaker is selected, rather than 
the Vice-President be designated as its presiding 
officer ? The Senate, it should be remembered, rep- 
resents the idea of State sovereignty, each State, 
irrespective of its size and population, being entitled 
to two senators. Anything that might seem to 
give to one State more influence than to anoth- 
er in the Senate would be regarded with suspi- 
cion and jealousy, and it was feared that if one of 
the senators was chosen presiding officer, it might 
give to the State he represented an undue influence 
in shaping legislation. To remove all causes for 
jealousy, and to preserve, if possible, perfect State 
equality, it was deemed best to designate the Vice- 
President as president of the Senate. He is not 
allowed to vote unless the Senate is equally divided. 
In the absence of the Vice-President, or when he 
exercises the office of President of the United States, 
a president pro tempore is chosen by the Senate. 

The Speaker. — The speaker is the presiding officer 
of the House of Representatives. He is chosen by 
the adherents of the political party having a major- 
ity in the House, and is, as a general rule, one of 
their accredited leaders. As he appoints the mem- 
bers of the various standing committees, by w T hom 
a great part of the business of the House is trans- 
acted, he necessarily exercises considerable influence 
in shaping legislation. These committees are nat- 
urally constituted in accordance with his own politi- 
cal views. Next to the election of the President, 



92 THE GOVERNMENT OF THE UNITED STATES. 

that of speaker seems to excite throughout the 
country the keenest interest. The selection is re- 
garded as an index of what the character of legis- 
lation is likely to be for the session. 

It was formerly the custom of the presiding officer of the 
House of Commons to answer in behalf of the House all com- 
munications addressed to it by the King. This in part sug- 
gested the title of speaker. The speaker of the House of 
Commons receives twenty-five thousand dollars per annum, a 
palace to live in, and, on retiring from the office, a pension of 
twenty thousand dollars a year. 

Other Officers. — The following officers, not mem- 
bers of Congress, are chosen by the House of Kep- 
resentatives : clerk, sergeant-at-arms, doorkeeper, 
postmaster, and chaplain. These officers, together 
with the speaker, are elected at the commencement 
of each Congress, and continue in office till their 
successors are chosen. Each is obliged to take an 
oath to support the Constitution of the United 
States, and to discharge faithfully the duties of his 
office. Stenographers, assistants, clerks, messen- 
gers, etc., are employed to aid the presiding and 
other officers in the discharge of their numerous 
duties. 

Duties of these Officers. — The officer next in impor- 
tance to the speaker is the clerk. His principal 
duties are to keep a record of each day's proceed- 
ings, certify to the passage of all bills, and cause to 
be printed and distributed such reports and docu- 
ments as the rules of the House require. The ser- 
geant-at-arms is a sort of police officer. It is his 
duty to maintain order under the direction of the 
presiding officer, compel the attendance of absent 



CONGRESS AT WORK. 93 

members when so ordered, and execute all the com- 
mands of the House. The symbol of his office is a 
mace, which is borne by him while enforcing order 
on the floor. The doorkeeper sees that the rules 
relating to the admission of persons to the sittings 
of Congress are enforced, and he is held responsi- 
ble for the furniture, books, and other public prop- 
erty in the rooms under his charge. The postmas- 
ter superintends the post-office kept in the Capitol 
for the convenience of members and officers, and 
is held responsible for the prompt and safe deliv- 
ery of the mail. The chaplain opens each day's ses- 
sion with prayer. The corresponding officers of the 
Senate are, secretary, sergeant-at-arms, postmaster, 
and chaplain, and they perform somewhat similar 
duties. The doorkeepers are under the control of 
the sergeant-at-arms. 

1. Sergeant-at-arms was originally an officer of police, ap- 
pointed to attend the person of the king and other great dig- 
nitaries. 

2. In the French Assembly, when the deputies become un- 
manageable, the president, by putting on his hat, may adjourn 
the sitting for one hour. 

3. Sometimes when the House is in session all night, the 
sergeant-at-arms is ordered to bring in absent members, on ac- 
count of a quorum not being present. Wherever members are 
found, in bed or elsewhere, they are hurriedly brought to their 
places, and required to give publicly to the House an excuse 
for their absence. Some of the excuses are exceedingly lu- 
dicrous. 

What is Meant by a Congress. — The term of service 
of representatives commences on the fourth day of 
March of every odd year, as 1881, 1883, 1885, 1887, 
and continues for two years. Each representative 



94 THE GOVERNMENT OF THE UNITED STATES. 

term, or period of two years, is designated as a 
Congress, and is numbered. For example, the Con- 
gress of 1883-1884 is known as the Forty-eighth 
Congress. Each Congress holds at least two ses- 
sions, one being designated as the short session, the 
other as the long session. The short session com- 
mences on the first Monday of December of every 
even year, and ends on the fourth of March follow- 
ing. The long session begins with a new Congress, 
that is in December of every odd year, and contin- 
ues till the following midsummer. At the expira- 
tion of a Congress, the term of office of all the rep- 
resentatives and one third of the senators expires. 

Meeting of Congress. — On the day fixed for the 
first meeting of a Congress, the newly elected rep- 
resentatives assemble in the hall of the House of 
Representatives in the Capitol at Washington, and 
at the hour of twelve o'clock are called to order 
by the clerk of the last House, who calls the roll 
of members, and acts as presiding officer until 
a speaker is chosen. In making out the roll, the 
clerk includes the names of all persons holding 
certificates of election from the proper officers. If 
there is any question about the right of any one to 
have a seat, this is decided afterwards by the House. 
After it is ascertained that a quorum is present, 
the House proceeds to the election of speaker. 
Upon his election, the oath of office is administered 
to him by one of the members, usually the one who 
has been longest a member of the House, called 
familiarly the " father of the House." The speak- 
er then administers a similar oath to all the mem- 



CONGRESS AT WORK. 95 

bers and delegates. The Senate convenes, at the 
same time as the House of Representatives, in what 
is known as the Senate chamber. The Vice-Presi- 
dent, as president of the Senate, administers the 
oath of office to new members, and takes charge 
of the organization. Each new senator is escorted 
to the president's desk by his colleague from the 
same State. The regular hour for both Houses to 
meet is twelve o'clock. The usual time of adjourn- 
ment is about six o'clock, although evening and 
all-night sessions are sometimes held. 

The Customary Notifications. — It is customary for 
the House of Representatives, after the election of 
speaker and after the oath of office has been ad- 
ministered, to notify the Senate that a quorum is 
present, that a speaker has been chosen, and that 
the House is ready to proceed to business. Upon 
the Senate informing the House of Representatives 
of the presence of a quorum, a joint committee is 
appointed by both Houses to wait on the President 
of the United States, and inform him that a quorum 
of the two Houses has assembled, and that Congress 
is ready to receive any communication he may be 
pleased to make. 

The President's Message. — It is the custom of the 
President, at the commencement of each session, to 
send an official communication to the two Houses 
of Congress, giving them information of the state 
of the Union, and recommending to their consider- 
ation such measures as he deems necessary and ex- 
pedient. This is known as the President's Message. 
As chief executive he becomes familiar with the 



96 THE GOVERNMENT OF THE UNITED STATES. 

practical workings of the laws, and from the nat- 
ure of his duties he possesses extensive sources of 
information regarding foreign as well as domestic 
affairs. He cannot submit bills to Congress, but 
he can call the attention of the law-making power, 
and through them the whole people, to such mat- 
ters as require the enactment of new laws or the 
improvement and alteration of existing laws, and 
make such recommendations as the state of the 
Union seems to suggest. Although Congress is not 
bound by his recommendations, his views, thus for- 
mally presented, have a certain controlling influence 
upon legislation. Accompanying the message are 
the voluminous reports of the secretaries relating 
to their several departments. Special messages are 
sent to Congress by the President on matters of 
special importance. 

It was the practice of Washington and Adams when Presi- 
dent to meet both Houses at the opening of eacli session, and 
present in person their views and recommendations. An an- 
swer in writing was afterwards returned by each House. Jef- 
ferson introduced the present plan of written messages. No 
answer is now returned by Congress. 

Organization Completed. — "When the clerical and 
other officers have been chosen, seats selected, and 
committees appointed, each House is fully organ- 
ized, and ready for the work of legislation. 

Standing Committees. — It would be impossible 
for either House of Congress to perform the vast 
amount of work required at each session, unless 
measures to be acted upon were first digested and 
put into proper form by committees especially ap- 



CONGRESS AT WORK. 97 

pointed for that purpose. One committee consid- 
ers all bills relating to the appropriation of public 
money, another has under its consideration all ways 
and means for obtaining a revenue for the support 
of the government, and there are as many other 
committees as there are appropriate subjects for 
legislation. A greater number of subjects can thus 
be considered at one time, and they can be presented 
to each House, for future action, in such a form as 
to be more readily acted upon. These committees, 
appointed as they are for a definite time, are called 
standing committees. In the House of Kepresenta- 
tives they are selected by the speaker ; in the Sen- 
ate, by adherents of the political party having a 
majority in that body, a caucus committee being 
chosen by them to make up the committees. The 
committees meet in rooms specially prepared for 
their convenience in the Capitol, and carefully ex- 
amine all measures referred to them. Each has 
its chairman, and a special clerk is provided to 
record its proceedings. When a committee re- 
ports in favor of or against a particular measure, 
the House to which it belongs usually acts accord- 
ing to its recommendations. The committees thus 
shape and give direction to all legislation. From 
time to time, as occasion requires, select committees 
are appointed for special and temporary purposes. 

1. There are in the Senate about thirty standing commit- 
tees: Privileges and Elections, Foreign Relations, Finance, 
Appropriations, Commerce, Manufactures, Agriculture, Mili- 
tary Affairs, Naval Affairs, Judiciary, Post-offices and Pest- 
roads, Public Lands, Private Land Claims, Indian Affairs, 
Pensions, etc. 



98 THE GOVERNMENT OF THE UNITED STATES. 

2. In the House of Representatives there are over forty- 
standing committees: Elections, Ways and Means, Appro- 
priations, Judiciary, Banking and Currency, Coinage, Weights 
and Measures, Commerce, Agriculture, Foreign Affairs, Mili- 
tary Affairs, Naval Affairs, Post-offices and Post-roads, Pub- 
lic Lands, Indian Affairs, etc. The person first named on each 
of the above standing committees is chairman. 

Mode of Passing Bills. — Supposing that a bill, hav- 
ing for its object the promotion of the educational 
interests of the country, should be presented by a 
member to the House of Eepresentatives. It is 
first referred without debate to the Committee on 
Education and Labor. If, after due consideration, 
the subject should be deemed of sufficient impor- 
tance to be acted upon by the House, it is reported 
back to the House by the committee having the 
subject in charge. Before its passage it must re- 
ceive three readings. It may be amended and 
passed, or defeated. If the bill passes the House, 
it is sent to the Senate, where it is referred to 
the appropriate committee, reported back, and dis- 
cussed. It may be amended by the Senate, and, if 
so, it is returned to the House of Eepresentatives. 
If passed without amendments, it is enrolled on 
parchment, and taken to the President of the 
United States for his approval. If the bill re- 
ceives his signature, it becomes law. The parch- 
ment on which it is written is then deposited 
among the public archives of the Department of 
State, and the law is published, under the direc- 
tion of the Secretary of State, as a statute of the 
United States. If the President does not approve 
of the measure, he returns it with his objections to 



CONGRESS AT WORK. 99 

the House in which it originated, in this case the 
House of Representatives, and his objections are 
entered at large on their journal. The bill, after 
being vetoed by the President, may still become 
law if passed by a two thirds vote of each House. 
When this vote is taken it must be by roll-call, 
and the names of the members voting for or 
against must be entered on the journal of each 
House. 1 The reading of every bill three times, the 
concurrence of both Houses, the approval of the 
President, are all designed to compel a careful ex- 
amination of proposed laws, and to prevent hasty 
and improper legislation. 

When the two Houses are not able to agree in regard to the 
provisions of a bill, a committee of conference may be proposed 
by either House to adjust, if possible, these differences. 

Revenue Bills. — Bills may originate in either 
House, with the exception of revenue bills, which 
must originate in the House of Representatives, 
but the Senate may propose or concur with amend- 
ments as on other bills. 2 The power to originate 
bills of this kind was delegated to the House of 
Representatives, on tHe principle that as the people 
paid the taxes, their more immediate representa- 
tives should alone originate all money bills. This 
is in imitation of the British House of Commons. 

How Bills may Become Laws. — A bill may become 
a law, 

1. By receiving a majority vote in each House, 
and the signature of the President ; 

J The Constitution, Article I. sec. 7, cl. 2. 
2 The Constitution, Article I. sec. 7, cl. 1. 



100 THE GOVERNMENT OF THE UNITED STATES. 

2. By receiving a two thirds vote in each House, 

without the signature of the President ; 

3. By not being returned by the President to 

the House from which it originated, with- 
in ten days, Sundays excepted, after it has 
been presented to him. 
After Congress has adjourned, no bill can become 
law unless signed by the President. Without this 
restriction, Congress might adjourn in order not to 
give the President an opportunity of returning a 
bill with his objections. On the other hand, un- 
less the President was required to return a bill 
within a certain specified time, he might defeat 
legislation by retaining the bill in his own posses- 
sion. All orders, resolutions, or votes to which the 
assent of the Senate and House of Eepresentatives 
may be necessary, except on a question of adjourn- 
ment, must be presented to the President, in the 
same manner that all bills are. This is to prevent 
Congress from adopting some other form than that 
of a bill in order to defeat the purpose of the Presi- 
dent's veto. 

When the President neglects to return a bill that has been 
sent to him for his signature within ten days of the close of a 
session, the bill is said to be " pocketed. 1 ' This is a kind of 
silent veto. 

Relation of the President to Legislation. — Since, as 
a rule, no bill becomes law without the signature 
of the President, he is sometimes spoken of as the 
third branch of the legislature. Although it is 
true that every bill to become law must, with the 
exceptions above referred to, receive his approval 



CONGRESS AT WORK. 101 

as well as that of a majority of the members of 
each House, his relation to all legislation is entirely- 
different from that of either House of Congress. 
All legislative powers granted by the Constitution 
are specifically vested by that instrument in Con- 
gress alone. The President can submit no bills nor 
can he originate any legislative measure. He may 
offer suggestions, but his suggestions may be utter- 
ly disregarded. Even when he refuses to sign a 
bill, a majority of two thirds can dispense with his 
approval. Also a bill may become law without 
any expression of opinion on his part, if not re- 
turned within ten days. The natural tendency of 
the legislative department is to encroach upon the 
authority of the other branches of the government, 
as well as upon the rights of the people at large, 
and the veto power was conferred upon the Presi- 
dent as a means of defence against any encroach- 
ments of the law-making power. The relation, 
therefore, of the President to legislation is primarily 
that of control. 

1. Even after a bill has passed both Houses of Congress and 
has been signed by the President, it becomes inoperative if 
the Supreme Court declares its provisions to be contrary to 
the Constitution. 

2. The President represents the people at large — the na- 
tion ; the senators, the people in separate commonwealths — the 
States; the representatives, the same people in small com- 
munities — congressional districts. Thus the people in their 
different relations and interests are represented in the mak- 
ing of the laws. 



CHAPTER X. 

THE POWERS OF CONGRESS. 

Powers of Legislation Vested in Congress. — In Con- 
gress are vested the powers of legislation. These 
powers are enumerated in the Constitution. Hence 
the government of the United States is said to be 
a government of enumerated powers. It must not 
be forgotten that the formation of a national gov- 
ernment was only rendered possible by the sev- 
eral States surrendering certain powers, and con- 
ferring them upon the general government. The 
Constitution is the instrument which specifies what 
these delegated powers are. 

General Powers of Congress.— The following powers 
are conferred by the Constitution upon Congress : 

1. To levy taxes and to borrow money ; 

2. To regulate interstate and foreign com- 

merce, to coin money, to fix a standard 
of weights and measures, and to estab- 
lish uniform laws on the subject of bank- 
ruptcy; 

3. To establish a uniform rule of naturaliza- 

tion ; 

4. To establish post-offices and post-roads ; 

5. To grant patents and copyrights ; 

6. To punish piracies and certain other crimes 

and offences, to declare the punishment of 



THE POWERS OF CONGRESS. 103 

treason, and to constitute tribunals infe- 
rior to the Supreme Court ; 

7. To declare war, to maintain an army and 

navy, and to provide for the organization 
of the militia, and for calling them into 
the service of the United States ; 

8. To exercise exclusive legislation over all 

ceded districts ; 

9. To make all laws which shall be necessary 

and proper for carrying into execution 
the provisions of the Constitution. 

TAXES AND THE PUBLIC DEBT. 

One of the Principal Defects of the Confederation. — 
One of the most serious defects of the Articles of 
Confederation was that the government could not 
impose taxes, but was compelled to appeal to the 
States for the money needed to carry on the gov- 
ernment. It is impossible to maintain an indepen- 
dent government without there being some means 
at its disposal of meeting its legitimate expenses, and 
of providing for the common defence and general 
welfare. Congress has full power to levy and col- 
lect such taxes as are necessary to defray all na- 
tional expenditures and to meet all obligations, and 
also to borrow money on the credit of the United 
States. It is one of the fundamental principles of 
a free government that taxes cannot be imposed 
except by the consent of the people or that of their 
representatives. The power of taxation is thus 
very properly vested in Congress. 

The Word Tax Defined. — A tax is a levy upon per- 



104 THE GOVERNMENT OF THE UNITED STATES. 

sons or property for the support of government. 
Any contribution imposed by a government upon 
individuals for the service of the state, is in a gen- 
eral sense a tax. Taxes are of two kinds, direct 
and indirect. 

Direct Taxes. — Taxes which a person pays direct- 
ly for real or personal property would usually be re- 
garded as direct taxes. The United States courts 
have, however, decided that only capitation and 
land taxes come under the head of direct taxes. 
This is no doubt owing to the clause of the Consti- 
tution which requires that direct taxes shall be ap- 
portioned among the several States according to 
their respective numbers. 1 If a tax on incomes or 
carriages were regarded as a direct tax and appor- 
tioned among the States according to their rep- 
resentative population, glaring inequalities would 
follow. 

1. Capitation (from the Latin word caput, a head) is a tax 
upon each head or person, a poll tax. It is levied on all per- 
sons alike, without reference to property, and is commonly 
called capitation-tax. 

2. u If two States, equal in census, were each to pay eight 
thousand dollars by a tax on carriages, and in one State there 
were one hundred carriages and in another one thousand, the 
tax on each carriage would be ten times as much in one State 
as in the other. While A, in one State, would pay for his car- 
riage eight dollars, B, in the other State, would pay for his 
carriage eighty dollars." — Kent, "Commentaries on American 
Law, 1 ' vol. i. p. 255. 

Indirect Taxes. — Taxes which the consumer pays 
as part of the price of the commodity are called 

1 The Constitution, Article I. sec. 2, cl. 3. 



THE POWERS OF CONGRESS. 105 

indirect taxes. The main reliance of our govern- 
ment has been upon duties or imposts laid upon 
articles imported into the country. These duties, 
when collected upon goods imported by wholesale 
merchants, fall indirectly upon the consumer, and 
are paid by him as part of the price of the imported 
article. For example, the merchant importing tea 
pays a government tax, adds this to the price of 
the tea when sold, and the consumer, in this indirect 
way, pays the tax. The same is true of excise taxes, 
which are laid upon articles manufactured or sold 
within the country, and upon licenses to pursue 
certain occupations. An instance of excise taxa- 
tion is the tax upon liquors, which is paid indirect- 
ly by the consumer. The Constitution requires 
that all duties, imposts, and excises shall be uniform 
throughout the United States. 

Duties, Tariff. — Duties are of two kinds, ad va- 
lorem (Latin, according to the value) and specific. 
An ad valorem duty is one that is levied according 
to the value of goods, a certain per cent, on the 
market price as stated in the invoice accompanying 
the goods. Ad valorem duties are computed on 
the original cost of the articles in the countries 
from which they come. A specific duty is a speci- 
fic sum levied on goods according to their quantity 
or weight, without regard to their value. A tariff is 
a schedule or table of goods with the duties or cus- 
toms to be paid to the government for the same 
on their importation. Duties, or, as they are some- 
times called, customs, are paid at custom-houses, 
which are located at ports along the coasts where 



106 THE GOVERNMENT OF THE UNITED STATES. 

goods can be conveniently landed. Congress can* 
not lay any tax or duty upon articles exported 
from any State. 

A duty of sixty per cent, on silks, ribbons, and shawls is an 
example of an ad valorem duty. A duty of twenty cents per 
bushel on wheat, or five cents per pound on cloves, or thirty- 
five cents per thousand on shingles, is an example of a specific 
duty. 

The Public Debt. — Although it is a settled prin- 
ciple that a new government inherits the obliga- 
tions of the old, it is provided in the Constitution 
that all debts contracted and engagements entered 
into before the adoption of the Constitution should 
be as valid against the United States under the 
Constitution as under the Confederation. 1 This 
provision was inserted to fully satisfy the creditors 
of the United States, foreign as well as domestic, 
that the new government would faithfully meet all 
its public obligations and inviolably keep the public 
faith. The fourteenth amendment contains also 
an additional pledge. 

The Articles of Confederation contained a somewhat similar 
provision regarding all debts contracted under the authority 
of Congress, prior to the ratification of the Confederation. 
See Articles of Confederation, Article XII. 

COMMERCE. 

Commerce under the Confederation. — The commerce 
of the States under the Confederation was almost 
entirely destroyed by reason of the injurious re- 
strictions of foreign nations, and the jealousy and 

i The Constitution, Article VI. cl. 1. 



THE POWERS OF CONGRESS. 107 

conflicting commercial regulations of the several 
States. American ships were almost driven from 
the ocean, and American industries were in a most 
deplorable condition. Distress and bankruptcy 
were almost universal. Perhaps nothing had more 
to do with securing the establishment of the Con- 
stitution than the inability of the Confederation to 
regulate commerce. 

Commerce under the Constitution. — The Constitu- 
tion confers upon Congress the power to regulate 
commerce, 

1. With foreign nations ; 

2. Among the several States ; 

3. With the Indian tribes. 

What the Power to Regulate Commerce Implies. — 
Commerce, in the usual acceptation of the word, 
signifies the exchange of one thing for another — 
traffic. This word, however, means something more 
than simply traffic, and includes transportation. 
It comprehends navigation and all other means of 
commercial intercourse. Consequently the right to 
regulate commerce includes the right to regulate 
transportation and the various channels through 
which traffic is carried on, as well as the rights 
and privileges of those engaged in commercial pur- 
suits. This power includes the right to legislate 
with reference to ship -building, the privileges of 
American and foreign ships, the rights of seamen, 
the erection of light - houses, the construction of 
piers, placing buoys and beacons, the removal of 
obstructions from bays and rivers, steamboat and 
railroad traffic, communications by telegraph, and 



108 THE GOVERNMENT OF THE UNITED STATES. 

in fact everything relating to navigation and com- 
mercial intercourse. 

Commerce with Foreign Nations. — Jealousies and 
rivalries among States stood in the way of all 
united effort to counteract the embarrassing re- 
strictions placed upon American commerce by for- 
eign nations. Each State adopted such regulations 
as seemed most likely to promote its own interests, 
irrespective of the interests of other States. The 
question was, not what the States as a whole might 
find to be mutually advantageous, but what advan- 
tage could one gain over another. Experience 
soon demonstrated the folly of such a course, and 
the States were compelled to abandon the selfish 
and narrow policy that was destroying their com- 
merce and bringing them into contempt among 
foreign nations. The conferring upon the national 
government the power to regulate commerce w r ith 
foreign nations placed the United States on an 
equality with other nations. 

Commerce between the States. — The power to regu- 
late commerce between the States is naturally as- 
sociated with the power to regulate commerce with 
foreign nations, and is of equal importance. It 
would be impossible to separate the two, and 
avoid misunderstandings and retaliations among 
the States. Local buying and selling, and local 
travel and communication, are regulated by State 
law ; but all communication between States, wheth- 
er by railroads, rivers, or any other means, is sub- 
ject to the control of Congress. 

Commerce with the Indians. — Congress has full con- 



THE POWERS OF CONGRESS. 109 

trol over commerce with the Indian tribes. This 
authority originally belonged to the British crown. 
After the Revolutionary WaT it passed to the Fed- 
eral government, with, however, some limitations. 
When the Constitution was adopted, this power, 
without restrictions, was vested in Congress. The 
Indian tribes have always been regarded as dis- 
tinct, and, in a certain sense, as independent politi- 
cal communities. 

The Coining of Money. — From the earliest times 
gold and silver have been used as a convenient 
means of purchase. At first these passed by 
weight for commodities of all kinds. Afterwards 
their value was determined by men putting a 
stamp upon them, in order that it might save oth- 
ers from the trouble of weighing them. In the 
course of time it became the established custom in 
civilized countries for the government to divide a 
mass of metal into small parts, according to fixed 
standards, stamp them, and authorize their use as 
a medium of exchange in commercial transactions. 
Thus coin came into general use. The important 
power of coining money and of regulating its 
value, and also of regulating the value of foreign 
coin, is intrusted to Congress. If this power had 
been reserved by the States, there would be no 
uniform standard of value, and great confusion 
would necessarily arise, owing to different stand- 
ards of value in different States. 

Mints have been established by the general government at 
convenient points for the coinage of money. The principal 
United States mint is located at Philadelphia. 



110 THE GOVERNMENT OF THE UNITED STATES. 

Weights and Measures. — Although the power to 
fix the standard of weights and measures has been 
conferred upon Congress, it has not seen fit to ex- 
ercise it. It would seem as though uniformity in 
weights and measures was a subject of sufficient 
importance to secure the attention of Congress, 
and to require some action on its part. But be- 
yond adopting the English units of weight and 
measure for the use of custom-house officials, and 
legalizing the metric system, without, however, mak- 
ing it obligatory, Congress has not exercised its 
constitutional power on this subject. The States 
have adopted the same standards of weight and 
measure as are used in the custom-houses. 

Bankruptcy. — When a person is unable to pay his 
debts he is said to be bankrupt, and provision is 
made in all civilized countries whereby a debtor's 
property may be ratably divided among his cred- 
itors, and the bankrupt relieved of all further ob- 
ligation, so that he may have an opportunity to 
make a new start in business, without a load of 
debt resting upon him. A bankrupt law " is a law 
for the benefit and relief of creditors and their 
debtors in cases in which the latter are unable or 
unwilling to pay their debts." Congress alone 
has the power to pass laws on the subject of bank- 
ruptcy that shall have authority throughout the 
United States. The several States, however, are at 
liberty to pass insolvent laws, provided Congress 
does not see fit to act upon this subject. There 
are at present no uniform laws in force on the 
subject of bankruptcy. 






THE POWERS OF CONGRESS. Ill 

Severe laws were enacted in early days for the punishment 
of debtors. The inability to meet one's legal obligations was 
formerly considered a most serious offence. In Rome, at one 
period, the debtor was completely within the power of his 
creditors. They could put him to death, and even divide his 
body among themselves, or sell him and his family into sla- 
very. It is only a few years since that debtors were imprisoned 
by their creditors until their obligations were met. 

NATURALIZATION. 

Naturalization Defined. — Naturalization is the act 
of investing an alien, that is, a person born in or 
belonging to another country, with the rights and 
privileges of native-born citizens. All persons 
born or naturalized in the United States, and sub- 
ject to its jurisdiction, are citizens of the United 
States and of the State wherein they reside. 1 Un- 
der the Confederation, each State regulated the 
naturalization of aliens, and, as a consequence, con- 
siderable dissimilarity existed among the States, 
owing to there being no uniform rules. 

A Mistaken Impression. — In some countries there 
has been at times decided opposition to allowing 
foreigners to settle and to enjoy all the rights and 
immunities of native-born citizens. This has arisen 
in part from the impression that the opportunities 
for acquiring wealth were lessened in proportion 
to the number of persons competing for the same. 
The more competitors there were, the less each 
person's share would be. Experience has taught a 
different lesson. Labor develops the resources of 
a country, and skilled workmen increase the facili- 

1 The Constitution, Amendments, Article XIV. sec. 1. 



112 THE GOVERNMENT OF THE UNITED STATES. 

ties for acquiring wealth. This fact is now so gen- 
erally recognized that special inducements are of- 
fered foreigners to emigrate to this country. 

How an Alien may Become a Citizen. — When an alien 
desires to become a citizen of the United States, 
the following steps must be taken : 

1. He must first declare his intention, before a 

court, of becoming a citizen of the United 
States. This declaration must be made 
two years before he can be admitted to 
the full rights of citizenship. 

2. At the expiration of two years, when he 

makes his application to be admitted to 
the full rights and privileges of citizen- 
ship, he must make oath or affirmation 
that he renounces forever all allegiance 
to any foreign prince or state, and that 
he will support the Constitution of the 
United States. He is also required to 
renounce any title of nobility which he 
may have. 

3. He must prove to the satisfaction of the 

court that he has resided five years in 

the United States, and one year in the 

State or territory where such court is at 

the time held. 

An alien arriving in this country under the age of 

eighteen years, and having resided in the United 

States for five years, may take the necessary steps 

to become a citizen without previously making a 

formal declaration of intention. 

1. Children born in foreign countries, whose parents are 



THE POWERS OF CONGRESS. 113 

citizens of the United States, are considered American cit- 
izens. 

2. The children of parents who have become naturalized are 
considered as citizens, provided they were under the age of 
twenty-one years at the time of the naturalization of their 
parents. 

POST-OFFICES AND POST-ROADS. 

Transmission of Letters. — The transmission of let- 
ters and printed matter, and the establishment of 
post-offices and post-roads, is a matter far beyond 
the means and appliances of private enterprise, and 
of necessity falls within the province of the gov- 
ernment. In early days, before commerce had as- 
sumed the importance of the present day, and but 
little correspondence passed between individuals or 
states, letters were conveyed by slaves, peddlers, 
shipmasters, or couriers. The wonderful develop- 
ment of commerce, and the dependence of trade 
on the rapid transmission and prompt delivery of 
the mails, have wrought wonderful changes in the 
method of conveying letters. 

In 1753 a Philadelphian was obliged to wait six weeks to 
get an answer from Boston. Benjamin Franklin startled the 
people of the colonies, in 1760, by proposing to shorten the 
time by four weeks. In 1792 the lowest rate of postage was 
six cents for thirty miles or less ; the highest, twenty -five cents 
for over four hundred and fifty miles. 

The Establishment of Post-Offices and Post-Roads. — 
Uniformity and promptness in the transmission of 
the mails could only be secured by giving to Con- 
gress the power to establish post-offices and post- 
roads. To have left this important power in the 
hands of the States would have given rise to endless 
delays and inconveniences. It is the custom of the 



114 THE GOVERNMENT OF THE UNITED STATES. 

federal government to select and designate certain 
roads as post-roads, the distribution and delivery 
of the mails being performed by government em- 
ployees. Every road within a State, including rail- 
roads, canals, turnpikes, and navigable rivers, be- 
comes a post-road when, by law or by the action 
of the post-office department, provision is made for 
the transportation of the mails upon or over it. 1 
Of so little importance did the power to establish 
post-offices and post-roads seem at first, that Madi- 
son spoke of it " as a harmless power," which might, 
"perhaps, by judicious management, become pro- 
ductive of great public convenience." This, how- 
ever, was at a time when men were grateful for 
weekly mails. 

" No other constitutional grant seems to be clothed in words 
which so poorly express its object, or so feebly indicate the 
particular measures which may be adopted to carry out its de- 
sign. To establish post-offices and post-roads is the form of 
the grant; to create and regulate the entire postal system of 
the country is the evident intent." — Pomeroy, " Constitutional 
Law," p. 353. 

PATENTS AND COPYEIGHTS. 

Authors and Inventors. — Upon Congress is con- 
ferred the power to promote the progress of science 
and the useful arts, by securing for limited times 
to authors and inventors the exclusive right to their 
respective writings and discoveries. 2 The exclusive 
right to what a person writes or invents, and to 
multiply and sell the same for his own profit, is of 



1 Cooley, -"Principles of Constitutional Law/' p. 83. 

2 The Constitution, Article I. sec. 8, cl. 8. 



THE POWERS OF CONGRESS. 115 

recent origin. It originated from the desire to en- 
courage invention and to stimulate genius, on the 
ground that the general welfare of a country w r ould 
thus be promoted. Some inducements must neces- 
sarily be held out to persons to spend time and 
money in writing useful books, or inventing new 
and useful improvements in machinery and the 
useful arts. The prospect of pecuniary benefit has 
stimulated men, even at a present loss of time and 
money, to unusual effort, and given birth to innu- 
merable inventions and literary productions. To 
give to authors and inventors the exclusive right 
to their respective writings and inventions for an 
unlimited period of time would be unwise, since it 
would perpetuate a monopoly and tend to stop the 
progress of improvement. It is wisely provided 
that Congress can grant patents and copyrights for 
only limited periods. 

Letters Patent. — Patents are granted by letters 
patent, which are official documents authorizing the 
recipients to do some act or to enjoy some right or 
privilege. By letters patent a person may secure 
the exclusive right, for a number of years, to make, 
use, and sell some new invention or discovery. The 
expression, letters patent, is derived from the Latin, 
and means open letters (literae patentes), that is, let- 
ters not sealed up, but exposed to the perusal of 
all, to whom such letters are usually addressed. It 
is meet that when any right or privilege is con- 
ferred upon an individual to the exclusion of others, 
it should be embodied in an instrument open to the 
perusal of all. In the United States, patent and 



116 THE GOVERNMENT OF THE UNITED STATES. 

letters patent commonly mean the same thing. A 
patent right is a right conferred by a patent. 

Caveat. — This word was originally a Latin word, 
and means let him beware. "When a person has 
invented something new, and desires to take time 
to perfect his invention, and at the same time to 
protect his interests, he may file in the Patent Of- 
fice at "Washington a description of the invention, 
preparatory to his applying for letters patent, and 
thus prevent others from obtaining a patent for the 
same invention. The instrument which thus oper- 
ates as a bar to all other applications respecting a 
like invention is called a c&veat. A caveat remains 
in force for one year. It may, however, be re- 
newed at the close of a year, and so on from year 
to year. 

How to Obtain a Patent. — Any person who has in- 
vented or discovered any new and useful art, ma- 
chine, manufacture, or composition of matter, or 
any new and useful improvement thereof, may ob- 
tain a patent for the same. The first step to be 
taken is to make an application. This must be in 
writing, and signed by the inventor, and addressed 
to the Commissioner of Patents, Washington, D. C. 
The applicant must describe fully his invention, 
and distinctly specify the part, improvement, or 
combination which he claims as his own. If pos- 
sible, drawings must be sent, and also a model 
is required, if the nature of the invention permits. 
When the invention is a composition of matter, a 
specimen of each ingredient must be furnished. 
Patents are granted for a term of seventeen years. 



THE POWERS OF CONGRESS. 117 

After a patent is secured, all articles manufactured 
under it must be marked " Patented," the day and 
year when the patent was granted being also given. 
Whoever infringes on a patent may be prosecuted 
in the Circuit Court of the United States, and is 
liable to pay heavy damages. 

The securing of letters patent involves considerable expense 
and labor. Printed circulars can be obtained from the Com- 
missioner of Patents, giving all necessary information regard- 
ing fees required and the steps to be taken. An Official 
Gazette of the United States Patent Office, containing the pat- 
ents, trade-marks, designs, and labels issued each week, is pub- 
lished by authority of Congress. 

Copyright. — A copyright is, in a certain sense, a 
patent under another name. It applies to literary 
productions instead of inventions. It confers upon 
a person the exclusive right, for a certain period of 
time, to print, publish, and sell a literary composi- 
tion, or to multiply and sell copies of some work 
of art. A copyright may be had in a book, map, 
chart, dramatic or musical composition, engraving, 
print, cut, photograph, painting, drawing, chromo, 
statue, model, or design intended to be perfected 
as a work of the fine arts. 

How to Obtain a Copyright. — In order to secure a 
copyright, three steps are necessary : 

1. Before publication, a printed copy of the 

title of the book, map, chart, etc., or a 
description of the article, must be trans- 
mitted to the librarian of Congress, to- 
gether w r ith a fee of one dollar. 

2. Within ten days after publication, two copies 

of the book, map, chart, dramatic or mu- 



118 THE GOVERNMENT OF THE UNITED STATES. 

sical composition, engraving, cut, print, 
or photograph, and in the case of a print, 
drawing, and like articles, a photograph, 
must be sent to the same official. 
3. The notice of entry for copyright must ap- 
pear on the title-page, or the page next fol- 
lowing, of every copy of a book, and upon 
the visible portion of every other article. 
Copyrights are granted for a term of twenty- 
eight years. At the expiration of that time they 
may be renewed for an additional term of fourteen 
years. 

Two forms of copyright are prescribed, either of which may 
be used : 

1. Entered according to Act of Congress in the year , 

by , in the office of the Librarian at Wash- 
ington. 

2. Copyright , by . 

RELATING TO JUSTICE. 

Authority over Crimes. — Upon Congress is con- 
ferred the power, 

1. To provide for the punishment of counter- 

feiting the securities and current coin of 
the United States ; 

2. To define and punish piracies and felonies 

committed on the high seas, and offences 
against the law of nations ; 

3. To declare the punishment of treason. 
Although these are the only express grants of 

power bestowed upon Congress to legislate on the 
subject of crimes, the power to punish all violations 
of the federal laws is implied in the provision au- 



THE POWERS OF CONGRESS. 119 

thorizing Congress to make all laws which shall be 
necessary and proper for carrying into execution 
the powers vested in it by the Constitution, or in 
any department or officer of the government. 1 
Otherwise the government of the United States 
would be unable to exercise effectively its constitu- 
tional powers. 

Counterfeiting the Securities and Current Coin of the 
United States. — By securities is here meant bonds, 
treasury notes, certificates, and other evidences of 
indebtedness issued by the United States in pursu- 
ance of its power to borrow money. Unless Con- 
gress had full authority to protect the securities 
and current coin of the United States, the credit of 
the national government would be destroyed, and 
the power to borrow money would be rendered use- 
less. Congress has enacted stringent laws for the 
punishment of counterfeiting. 

"This power would naturally flow, as an incident, from the 
antecedent powers to borrow money and regulate the coinage ; 
and, indeed, without it these powers would be without any 
adequate sanction."— Story, " Commentaries on the Constitu- 
tion," vol. ii. p. 57. 

Piracies and Felonies on the High Seas, and Offences 
against the Law of Nations. — As the States conferred 
upon Congress the power to regulate commerce, 
together with the exclusive control of all foreign 
relations, they necessarily associated with this the 
authority to protect navigation on the high seas, 
and to punish citizens of the United States for 
crimes committed while sailing to and from foreign 

1 The Constitution, Article I. sec. 8, cl. 18. 



120 THE GOVERNMENT OF THE UNITED STATES. 

countries, or for offences against the law of nations. 
Foreign governments naturally hold the national 
government responsible for any infringements of 
the rights of its subjects on the high seas, or any 
breaches of international law by citizens of the 
United States. Unless, therefore, the government 
had the authority to punish such offences, it would 
be involved in dangerous controversies with foreign 
nations, and frequent wars would be inevitable. 
Congress is empowered to define as well as to pun- 
ish these offences. 

Terms Defined. — Piracy, according to the law of 
nations, is robbery or a forcible depredation on the 
high seas without lawful authority. It is the same 
offence at sea with robbery on land. 1 Felony, in 
American law, is generally used to designate any 
high crime, like murder, manslaughter, arson, bur- 
glary, etc., that is punishable by death or imprison- 
ment. By high seas is meant not only the waters 
of the ocean which are out of sight of land, but 
the waters of the sea-coast below low- water mark. 2 
The high seas are common to all mankind. All 
nations claim there a common jurisdiction. The 
law of nations is a system of rules accepted by civ- 
ilized nations as obligatory in their dealings with 
one another. 

The Crime of Treason. — As treason has for its ob- 
ject the overthrow of the government, it has ever 
been regarded as the highest crime that a subject 



1 Kent, " Commentaries on American Law," vol. i. p. 183. 

2 Story, " Commentaries on the Constitution," vol. ii. p. 84. 



THE POWERS OF CONGRESS. 121 

could commit, and been visited with the severest, 
and, at times, most savage and degrading punish- 
ments. A person convicted of treason was not only- 
deprived of his life and his body horribly mutilated, 
but he forfeited all his property, and his family 
were reduced to poverty. His children could not 
inherit any estate from their ancestors, because the 
parent's blood was corrupted as a consequence of 
treason, that is, had lost all inheritable qualities. 
For example, a grandson could not inherit lands 
and tenements from his grandfather at his death, 
when the title must descend through the father, as 
a person attainted was incapable of inheriting or 
transmitting property from an ancestor. It was 
thought that these inhuman punishments, involving 
the innocent with the guilty, would restrain men 
from the commission of treasonable acts. 

In England, women convicted of treason were at one time 
burned alive. According to Macedonian laws, not only was the 
offender put to death, but also his children and all his relatives. 

Wrongs Perpetrated in the Name of Treason. — In time 
of great political excitement, acts of slight miscon- 
duct, and even of an innocent character, have been 
comprehended under the term of treason. Many 
offences that were not suspected to be in any sense 
treasonable have been construed as such by judges 
holding office at the pleasure of the crown, at the 
instance of tyrannical princes, either to gratify a 
feeling of revenge, or to obtain the possessions of 
their victims. To guard against such grievous 
wrongs, the Constitution expressly defines what 
shall constitute treason. 
6 



122 THE GOVERNMENT OF THE UNITED STATES. 

Treason as Defined by the Constitution. — Treason 
against the United States, as defined by the Consti- 
tution, consists only, 

1. In levying war against the United States ; 

2. In adhering to their enemies, giving them 

aid and comfort. 
With regard to the nature of the evidence, it is 
furthermore provided that no person can be con- 
victed of treason unless on the testimony of two 
witnesses to some overt act, or on confession in 
open court. 1 Thus the Constitution, while defend- 
ing the supremacy of the national government, 
carefully guards the liberty of the citizen against 
the evils of forced and arbitrary constructions of 
treason, and requires conclusive evidence of the 
guilt of the accused. 

The Punishment of Treason. — The punishment of 
treason is not prescribed by the Constitution, but 
it was left with Congress to declare what it should 
be, with the limitation that no attainder of trea- 
son — that is, no conviction and judgment in court 
against the offender — shall work corruption of blood 
or forfeiture, except during the life of the person 
attainted. 2 The punishment, as fixed by act of Con- 
gress, is death by hanging, or, at the discretion of 
the court, imprisonment at hard labor for not less 
than five years, and a fine of not less than ten thou- 
sand dollars. • 

Inferior Tribunals. — The Constitution provides for 



1 The Constitution, Article III. sec. 3, cl. 1. 

2 The Constitution, Article III. sec. 3, cl. 2. 



THE POWERS OF CONGRESS. 123 

the establishment of a Supreme Court, but confers 
upon Congress the power to establish inferior tri- 
bunals. The nature and jurisdiction of these courts 
will be described in the chapters on the judicial de- 
partment. 

RELATING TO WAR AND MILITARY AFFAIRS. 

1. Declaration and Conduct of War. 

Declaring War. — To Congress is intrusted the power 
of declaring war, granting letters of marque and 
reprisal, and making rules concerning captures on 
land and water. In monarchical forms of govern- 
ment, the power to declare war is usually vested in 
the king, but it has been so frequently resorted to 
by rulers to gratify personal ambition and to satisfy 
imaginary wrongs, that the framers of the Consti- 
tution were unwilling to intrust so dangerous a 
power to the chief executive. Then again the Con- 
stitution was adopted at a time when the States 
were suffering from the effects of the war with 
Great Britain, and they were vividly impressed 
with the necessity of guarding, with the utmost 
care, the exercise of a power so full of disastrous 
consequences to a people, if hastily or wrongfully 
made use of. As the people have to bear the bur- 
dens of war, it is but right that their representatives^ 
and not the chief executive, should exercise the pre- 
rogative of declaring war. 

Letters of Marque and Reprisal. — In time of war, 
the practice of commercial nations has long been 
to make use, not only of public, but also of private 
armed vessels for the purpose of doing injury to 



124 THE GOVERNMENT OF THE UNITED STATES. 

the enemy. This usage in Europe runs back to 
the time when permanent public navies scarcely 
existed. 1 Private vessels thus commissioned are 
called privateers. The commissions or letters au- 
thorizing private persons to seize the ships and 
property of an enemy are called letters of marque 
and reprisal. Even in time of peace, letters of 
marque and reprisal are sometimes granted by a 
government to its subjects when they have been 
injured by the subjects of another nation, and jus- 
tice is denied, in order that the injured parties may 
obtain satisfaction to the extent of their injuries. 

1. Privateering has for a long time been regarded by thought- 
ful men as a great evil, and nearly all Christian states, with 
the exception of the United States, have agreed to abandon it. 

2. Marque (derived from a word meaning border, boundary) 
is a license to go across the frontier of a country for the pur- 
pose of making reprisals, and at first referred to expeditions 
on the land. Reprisal signifies a taking in return, by way of 
retaliation. 

Concerning Captures. — When captures have been 
made, they become the property of the captor only 
by the sentence of a competent court. This is to 
guard against the excesses and abuses which are 
incident to warfare. The courts which have juris- 
diction in matters pertaining to prizes are the Unit- 
ed States District and Circuit Courts. The power 
to make rules concerning captures on land and wa- 
ter is naturally associated with the power to de- 
clare war. 

1 Woolsey, " International Law," p. 206. 



THE POWERS OF CONGRESS. 125 

2. The Regular Army and Navy. 

To Raise and Support Armies. — Under the Confed- 
eration, Congress could declare war and decide 
what number of troops were necessary, but it could 
not raise troops. The States alone could do this. 
This division of pow r er gave rise to endless difficul- 
ties, and proved a serious obstacle to the vigorous 
prosecution of the war with Great Britain, some 
States furnishing their full quota of troops, while 
others, less exposed to the inroads of the enemy, 
w^ere negligent in furnishing their just proportion. 
The Eevolutionary War clearly demonstrated that 
it was useless to confer upon Congress the power 
to declare w T ar without also authorizing it to raise 
and support armies. This power includes the en- 
listment and support of troops, the determination 
of their number and term of service, the payment 
of bounties and pensions, the purchase of arms, am- 
munition, and supplies, the construction of arsenals, 
barracks, and forts, the maintenance of military 
schools, and in fact everything that may be needed 
to make an army effective in the conduct of war. 

A Restriction. — To guard against the improper use 
of the army by the President, w T ho by virtue of his 
office is commander-in-chief of the army and navy, 
and to remove all danger of a large standing army 
being kept on foot to menace the liberties of the 
people, the Constitution provides that no appropria- 
tion of money for the support of the army shall be 
made for a longer term than two years. By re- 
fusing to vote money for the support of the army, 



126 THE GOVERNMENT OF THE UNITED STATES. 

it is within the power of Congress to cause the dis- 
memberment of a force that is being improperly 
used by the chief executive. As appropriations are 
now made annually, there is very little danger of 
the army being used as an instrument of oppres- 
sion, or to further the personal interests of any one 
person. 

To Provide and Maintain a Navy. — Whatever reasons 
have weight for raising and supporting armies, have 
equal weight for providing and maintaining a navy. 
No maritime nation is safe unless its commerce is un- 
der the protection of an efficient and well-equipped 
navy, " from which, however strong and powerful, 
no danger can ever be apprehended to liberty." 
The power to provide and maintain a navy includes 
the enrolment of seamen, the purchase of arms and 
supplies, the building of vessels of war, the con- 
struction of navy and dock-yards, the maintenance 
of naval schools, and whatever else is needed to 
make a navy effective. 

The Government and Regulation of the Land and 
Naval Forces. — Congress is furthermore empowered 
to make rules for the government of the land and 
naval forces. Under this grant of power, Congress 
may adopt a system of tactics, arrange and classify 
the land and naval forces, determine the number, 
duties, and pay of officers, define military offences 
and provide for their punishment, organize courts- 
martial and prescribe their jurisdiction. It has ac- 
cordingly enacted a code of rules for the regulation 
of the army and navy, in peace as well as in war. 
This code constitutes what is known as military law. 



THE POWERS OF CONGRESS. 127 



3. The State Militia. 

The Militia. — It has never been the policy of free 
governments to maintain a large military force in 
time of peace, owing to the popular prejudice against 
standing armies, and the necessity of expending 
large sums of money for their support. Their main 
reliance for defence, both against foreign invasion 
and domestic turbulence, has been upon the militia, 
" the cheap defence of nations." To meet all ex- 
igencies, Congress is authorized to provide for call- 
ing forth the militia, 

1. To execute the laws of the United States; 

2. To suppress insurrections ; 

3. To repel invasions. 

Congress has conferred upon the President the 
power to call forth the militia whenever any of 
these exigencies arise. When in the service of the 
United States, the militia are under the command 
of the President. They are subject to the same 
rules and regulations as soldiers in the regular 
army, and receive the same pay and rations. 

A standing army is " a body of men distinct from the body 
of the people; they are governed by different laws; blind 
obedience and an entire submission to the orders of the com- 
manding officer is their only principle. The nations around 
us are already enslaved and have been enslaved by these very 
means; by means of their standing armies they have every one 
lost their liberties. It is, indeed, impossible that the liberties 
of the people can be preserved in any country where a numer- 
ous standing army is kept up."— Pulteney, u Parliamentary 
History,'' vol. viii. p. 904. 

The Power of Congress over the Militia. — Congress 



128 THE GOVERNMENT OF THE UNITED STATES. 

may provide for the organization, arming, and dis- 
cipline of the militia, and for the government of 
such part of them as may be employed in the ser- 
vice of the United States ; but to the States respec- 
tively are reserved the appointment of officers, and 
the training of the militia according to the disci- 
pline prescribed by Congress. It will be readily 
seen that uniformity among the militia of the sev- 
eral States, in organization, arms, and discipline, is 
absolutely necessary in order to secure harmony of 
action when called into the service of the United 
States. During the American Revolution, the mili- 
tia of the States, when called into the field, was fre- 
quently unwilling to recognize any authority but 
that of their own States, and as a result was ineffi- 
cient and unreliable as troops. 

CEDED DISTRICTS. 

District of Columbia. — A tract of territory on the 
Potomac River, ceded to the United States govern- 
ment by the State of Maryland, constitutes the pres- 
ent District of Columbia. This territory contains 
the city of Washington, the seat of the national gov- 
ernment, where the President resides, and where the 
departments of government have suitable buildings 
for the transaction of business. Over this district 
Congress has exclusive jurisdiction. The govern- 
ment of the Confederation was without a capitol. 
This was a source of much inconvenience. 

Other Ceded Places. — Congress is also empowered 
to exercise exclusive legislation over all places pur- 
chased by the consent of the legislature of the State 



THE POWERS OF CONGRESS. 129 

in which the same shall be, for the erection of forts, 
magazines, arsenals, dock-yards, and other needful 
buildings. 1 Unless Congress had exclusive control 
over places thus acquired, serious misunderstand- 
ings as to jurisdiction might arise between the na- 
tional government and the States in which these 
ceded places might be. The inhabitants of such 
places cease to be inhabitants of the State, and they 
no longer possess the civil and political rights which 
otherwise would belong to them under the laws of 
the State. By the consent of the legislature of the 
State, the State governments lose all jurisdiction. 
But the right of exclusive legislation within the ter- 
ritorial limits *of any State for the objects above 
enumerated can only be acquired by the consent of 
the State legislature. Unless this consent is given, 
a State still has jurisdiction over places held by the 
United States within its limits. The cession of ter- 
ritory is a free act of the States. 

Government gains ownership of land by purchase or by ex- 
ercise of the right of eminent domain. The States cede right 
of jurisdiction. The national government is proprietor of the 
Detroit post-office building, but the State has jurisdiction; 
while the jurisdiction over Fort Wayne belongs to the United 
States. 

POWERS IMPLIED. 

Necessary and Proper Laws. — The Constitution fur- 
ther provides that Congress shall have power to 
make all laws which shall be necessary and proper 
for carrying into execution the foregoing powers, 
and all other powers vested by the Constitution in 

1 The Constitution, Article I. sec. 8, cl. 17. 
6* 



130 THE GOVERNMENT OF THE UNITED STATES. 

the government of the United States, or in any de- 
partment or officer thereof. 1 It would seem at first 
as though it were unnecessary to incorporate a pro- 
vision like this into the Constitution, for the reason 
that the power to do a thing necessarily implies the 
use of such means as are needful to execute it. This 
clause was doubtless designed to remove all uncer- 
tainty respecting the right of Congress to make use 
of such measures as in its judgment seemed best 
for carrying into execution the constitutional pow- 
ers of the national government. It would have 
been impracticable to attempt to enumerate all the 
means by which the various powers conferred by 
the Constitution should be exercised 

1. However government is constituted, " infinitely the great- 
er part of it must depend on the exercise of powers which are 
left at large to the prudence and uprightness of ministers of 
state." — Burke. 

2. " Those who made the Constitution conferred upon the 
government of their creation sovereign powers ; they prescribed 
for it a sphere of action, limited, indeed, as respects subjects 
and purposes, but within which it should move with supreme 
authority, untrammelled except by the restraints which were 
expressly imposed, or which were implied in the continued 
existence of the States and of free institutions. But there can- 
not be such a thing as a sovereign without a choice of the 
means by which to exercise sovereign powers." — Cooley, " Prin- 
ciples of Constitutional Law," p. 92. 

1 The Constitution, Article I. sec. 8, cl. 18. 



CHAPTER XL 

RESTRICTIONS UPON THE POWERS OF CONGRESS. 

Prohibited Powers. — While Congress is supreme in 
the exercise of certain specified powers, and ample 
authority is given to carry them into execution, 
there are certain restrictions imposed upon the ex- 
ercise of the powers of Congress. The Constitution 
forbids Congress, 

1. To prohibit the importation of slaves prior 

to the year 1808 ; 

2. To lay any capitation or other direct tax, 

except as provided for in the Constitution ; 

3. To lay any tax or duty on articles exported 

from any State ; 

4. To give preference, by any regulation of 

commerce or revenue, to the ports of one 
State over those of another ; 

5. To suspend the writ of habeas corpus, ex- 

cept for certain specified reasons ; 

6. To pass any bill of attainder or ex post facto 

law; 

7. To grant any title of nobility. 

The above prohibitions may be conveniently ar- 
ranged under two heads : (1) Restrictions upon the 
commercial and revenue powers of Congress ; and 
(2) Limitations upon the general authority of Con- 



132 THE GOVERNMENT OF THE UNITED STATES. 

RESTRICTIONS UPON COMMERCIAL AND REVENUE 
POWERS. 

The Slave Trade. — During the colonial period the 
crown encouraged the importation of slaves, and 
refused to sanction measures proposed by the colo- 
nics to check the pernicious traffic. This consti- 
tuted one of the grievances of the colonies which 
Jefferson desired to have incorporated in the Dec- 
laration of Independence. When the Constitution 
was trained, the slave traffic was countenanced and 
oarried on by every civilized nation in Europe. Pre- 
vious to this time, some of the States had prohibited 
the importation of slaves, while other States still 
imported them. Jt was insisted by many of the 
delegates in the Constitutional Convention that to 
admit in the Constitution the 4 right of the States to 
import slaves would dishonor the principles of the 
Revolution and would be entirely inadmissible, 
while some opposed the traffic on the ground that 
it gave a State an opportunity to increase its repre- 
sentation in Congress by importing slaves from 
Africa, Other delegates insisted that each State 
should be left free to import such persons as it 
should think proper to admit, and they further- 
more declared that their States would never adopt 
the Constitution if it prohibited the slave trade. 
The settlement of this vexed question was attended 
with the gravest difficulties. Finally the extreme 
desire to preserve the Union, and to secure an effi- 
cient government, coupled with the belief of many 
that slavery would only have a temporary exist- 



RESTRICTIONS UPON THE POWERS OF CONGRESS. 133 

ence, moved the delegates to compromise the mat- 
ter by providing that the migration or importation 
of such persons as any of the States then existing 
might think proper to admit, should not be pro- 
hibited by Congress prior to the year 1808, and 
that a tax not to exceed ten dollars might be im- 
posed for each person thus imported. 1 At the ex- 
piration of the stipulated time, the slave trade was 
abolished by unanimous legislation. Subsequently 
Congress declared the traffic to be piracy and pun- 
ishable with death. Thus the United States was 
the lirst of modern nations to interdict and abolish 
the slave trade. 

In the year 1806, Jefferson, at that time President of the 
United States, addressed the following communication to Con- 
gress: U I congratulate you, fellow-citizens, on the approach of 
the period at which you may interpose your authority con- 
stitutionally to withdraw the citizxms of the United States 
from all further participation in those violations of human 
rights which have been so long continued on the unoffending 
inhabitants of Africa, and which the morality, the reputation, 
and the best interests of our country have long been eager to 
prescribe." 

Capitation or other Direct Tax. — It has already 
been stated that when a tax is levied on all persons 
alike, without regard to the amount of property- 
possessed by each, it is called a capitation or poll- 
tax ; and that the term direct tax, as used in the 
Constitution, refers merely to land and capitation 
taxes, the term being used in a restrictive sense. 
The Constitution provides that direct taxes shall 
be apportioned among the several States according 

1 The Constitution, Article I. sec. 9, cl. 1. 



134 THE GOVERNMENT OF THE UNITED STATES. 

to their respective numbers, and Congress is for- 
bidden to lay any capitation or other direct tax 
except as thus provided. This is to secure an equal 
distribution of the burden of taxation. 

Articles Exported. — As the exports of a State vary 
according to its geographical position, climate, char- 
acter of the soil, and its manufactures, it would be 
impossible to so adjust taxes on exports that the 
interests of all the States would be equally pro- 
tected. If the power were conferred upon Congress 
to lay a tax or duty on articles exported from any 
State, there might be danger of some States, through 
their representatives, combining to legislate in favor 
of their own exports to the injury of other States. 
Then, again, if duties should be laid by Congress on 
articles conveyed to foreign countries, the price of 
such articles would in many instances have to be in- 
creased to such an extent that it would be impossible 
to compete with other nations in foreign markets. 

Preferences. — One of the essential conditions of a 
permanent union of sovereign States is that no pref- 
erence shall be given to one State over another. 
Anything, therefore, that might tend to advance 
the interests of one State at the expense of another 
should be carefully avoided. It is wisely and justly 
provided that no preference shall be given by any 
regulation of commerce or revenue to the ports of 
one State over those of another ; nor shall vessels 
bound to, or from, one State, be obliged to enter, 
clear, or pay duties in another. 1 To enter and clear, 

1 The Constitution, Article I. sec. 9, cl. 6. 



RESTRICTIONS UPON THE POWERS OF CONGRESS. 135 

as here used, are commercial terms. To enter is 
to report a ship and its cargo at the custom-house, 
and obtain permission to land. To clear is to get 
a permit for a ship to sail. This is obtained by 
complying with the regulations established at the 
custom-house, and securing what is called a clear- 
ance. Without such a document, no ship can law- 
fully leave a port. By obliging vessels to enter and 
clear, it is possible to obtain a knowledge of all the 
exports and imports of a country. During colonial 
times American vessels were obliged to enter and 
clear at a British port, no matter how inconvenient 
it might be, before they could trade with European 
ports. 

LIMITATIONS UPON THE GENERAL AUTHORITY OF CON- 
GRESS. 

The Writ of Habeas Corpus. — When a person is im- 
prisoned for a supposed offence, a writ may be is- 
sued by a judge, having competent authority, com- 
manding the officer who holds the person in custody 
to bring him before the court, with a statement of 
the cause of his detention, and to submit to what- 
soever the judge may order. If, in the opinion of 
the judge, the cause of detention is not sufficient, 
the prisoner is released by order of the judge. This 
writ, " the well-known remedy for the violation of 
personal liberty," is called the w r rit of habeas corpus. 
The expression habeas corpus (you may have the 
body) is from the Latin, the language in which 
writs were formerly written. The words habeas 
corpus were the important words of the writ', and 
are now used to designate it. 



136 THE GOVERNMENT OF THE UNITED STATES. 

A writ is a written instrument issued by a court, command- 
ing a person to do something therein contained. A writ of 
habeas corpus may be granted either upon the application of 
the person restrained of his liberty or of some one in his be- 
half. 

Importance of the Writ. — As the object of the writ 
of habeas corpus is to inquire into the cause of a 
person's imprisonment with a view to his liberation, 
it is very properly regarded as the bulwark of per- 
sonal liberty. Formerly the person of a subject 
was completely at the mercy of the sovereign. 
"When a person was arrested and imprisoned by the 
command of the king, there was no appeal. Hap- 
pily it is now a well-established principle that no 
person shall be imprisoned except for just and suf- 
ficient cause. An officer detaining any one in cus- 
tody may be called upon at any time by the proper 
authority to produce his prisoner in court, and show 
cause why the prisoner should not be released. 

" Next to personal security, the law of England regards, as- 
serts, and preserves the personal liberty of individuals. This 
personal liberty consists in the power of locomotion, of chang- 
ing situation, or moving one's person to whatsoever place one's 
own inclination may direct, without imprisonment or restraint, 
unless by due process of law." — Blackstone, " Commentaries 
on the Laws of England," bk. I. p. 134. 

When this Writ may be Suspended. — The suspension 
of the writ of habeas corpus is fraught with so much 
danger to personal liberty that only in case of ex- 
treme and pressing necessity is there any excuse 
for it. To take from a person unlawfully impris- 
oned the right to an immediate hearing and dis- 
charge, and to authorize arrests without due proc- 



RESTRICTIONS UPON THE POWERS OF CONGRESS. 137 

ess of law, is a power that should be restricted 
within very narrow limits. Sometimes this writ 
has been suspended for trivial reasons, and great 
injustice and grievous oppression have followed. 
In order to protect personal liberty, and yet at the 
same time have regard for the public safety, the 
Constitution expressly declares that the privilege 
of the writ of habeas corpus shall not be suspended, 
unless when, in cases of rebellion or invasion, the 
public safety may require it. 1 The suspension of 
the writ may be ordered by Congress, or by the 
President of the United States, when authorized to 
do so by Congress. 

Bill of Attainder. — A bill of attainder is an act of 
a legislature inflicting capital punishment upon a 
person for an alleged crime without a judicial trial. 
Forfeiture of property and corruption of blood were 
the consequences of attainder. In other words, the 
offender forfeited, not only his life, but also his 
property, and he could neither inherit property 
from his ancestors nor transmit any to his children. 
Bills of attainder are unjust and tyrannical in the 
highest degree in that they deprive a person of life, 
liberty, and property without a trial, and some- 
times without even the formality of proof, or an 
opportunity for defence. They have usually been 
passed in times of great political excitement, and 
when there was not sufficient evidence against an 
obnoxious person to secure conviction in the ordi- 
nary courts of justice, or when persons were not 

1 The Constitution, Art. I. sec. 9, cl. 2. 



138 THE GOVERNMENT OF THE UNITED STATES. 

subject to punishment under the general law of the 
land. To allow Congress to exercise a power so 
at variance with every principle of justice would be 
wholly inconsistent with the spirit of a government 
which was formed to establish justice and to secure 
the blessings of liberty to every citizen. Then, 
again, it is not properly within the province of a 
legislative body to pass sentence of death upon a 
person for alleged offences. The trial and punish- 
ment of criminals belongs to a separate department 
of government, the judicial, and should not be in- 
trusted to a body whose members are chosen for 
another purpose, namely, to make laws. 

The Great Act of Attainder of 1688. — One of the 
most atrocious acts ever passed in any civilized 
country, as well as one of the most noteworthy il- 
lustrations of legislative punishment, was the Great 
Act of Attainder, passed in 1688 by the Parliament 
of James II., in Dublin. A list was framed con- 
taining between two and three thousand names. 
It included persons of all ranks, together with 
women and children. No inquiry was made as to 
the guilt of those who were proscribed. Any 
member who wished to rid himself of a creditor, a 
rival, or a private enemy, gave in the name to the 
clerk at the table, and it was generally inserted 
without discussion. The persons named in the list 
were required to surrender themselves at certain 
specified times, and if they failed to do so they 
were to be hung without a trial and their property 
confiscated. To add to the horrible character of 
the whole proceeding, extreme care was taken that 



RESTRICTIONS UPON THE POWERS OF CONGRESS. 139 

the persons attainted should be kept in ignorance of 
the fact till the time fixed in the act for their ap- 
pearance had passed. 1 

Ex Post Facto Law. — An ex post facto law is a law 
declaring an act to be criminal, and punishable as 
such, which when committed was innocent ; or it 
is a law making the punishment for an offence 
greater than it w T as when the offence was commit- 
ted. The Supreme Court of the United States has 
defined an ex post facto law as "one which renders 
an act punishable in a manner in which it was not 
punishable when it was committed." Such laws 
have been passed by legislatures subservient to the 
crown in order to get rid of obnoxious persons. 
Acts committed by them which were not punish- 
able, at the time committed, by any existing laws, 
have been declared to be crimes and prosecuted as 
such. Laws like these are manifestly unjust, and 
totally at variance with the principles of republican 
government. 

In some States the crime of murder is punishable by impris- 
onment for life. If in these States a law should be passed 
changing the punishment of murder to death by hanging, and 
inflicting capital punishment on all those who had been sen- 
tenced to imprisonment for life, such a law would be an ex 
post facto law. The expression ex post facto is from the Latin, 
and means done after another thing. Ex post facto laws are, 
therefore, laws passed after the act is done. 

Titles of Nobility. — Titles of nobility create humil- 
iating class distinctions, and are at variance with 
the spirit of republican institutions. The declara- 

1 Macaulay, " History of England," vol. iii. pp. 200-203. 



140 THE GOVERNMENT OF THE UNITED STATES. 

tion that all men are created equal was the watch- 
word of the Revolutionary "War, and is a distin- 
guishing feature of American liberty. Not only is 
the government of the United States prohibited 
from granting any title of nobility, but also all 
persons holding offices of profit or trust under the 
United States are forbidden to accept, without the 
consent of Congress, any present, emolument, of- 
fice, or title of any kind whatever, from any king, 
prince, or foreign state. 1 It would seem as though 
the love of country would be a sufficient guarantee 
for the honor and faithfulness of public ministers, 
especially in their relations with foreign nations, 
and that there would be but little danger of any 
foreign court being able to influence, by bribes or 
otherwise, government officials in the performance 
of their duties. There have, however, been fre- 
quent instances of the officials of one country being 
tampered with by the government of another. 

In the Treasury at Washington are still preserved valuable 
jewels which were presented to President Van Buren by a for- 
eign potentate, and in the National Museum can be seen cost- 
ly gifts presented at different times to officers of the United 
States, and by them given to the national government. 

Appropriations. — No money can be drawn from 
the Treasury of the United States but in conse- 
quence of appropriations made by law. This re- 
striction applies more particularly to the executive 
department. In despotic governments the mon- 
arch makes such levies upon his subjects as he 
thinks proper, and he is responsible to no one for 

1 The Constitution, Art. I. sec. 9, cl. 8. 



RESTRICTIONS UPON THE POWERS OF CONGRESS. 141 

the manner in which he disposes of the money of 
the people. With the growth of English liberty 
the public funds have been less at the disposal of 
the chief executive, and more under the control of 
the trustees of the people. Congress "keeps the 
purse-strings of the public treasury," and no money 
can be drawn from it unless in accordance with 
some appropriation made by act of Congress, no 
matter how urgent the public needs may be. In 
order that all departments of government, espe- 
cially the legislative, may have a due sense of their 
responsibility to the people, the Constitution re- 
quires that a regular statement of aU receipts and 
expenditures shall be published from time to time. 
Other Express Limitations. — The first amendment 
forbids Congress to make any law respecting an 
establishment of religion, or prohibiting the free 
exercise thereof ; or abridging the freedom of 
speech or of the press, or of the right of the people 
peaceably to assemble, and to petition the govern- 
ment for a redress of grievances. 1 Other restraints 
are imposed by the Constitution, but they apply to 
the other departments of government as well as to 
Congress. These will be more conveniently de- 
scribed hereafter. 

1 The Constitution, Amendments, Art. I. 



CHAPTER XII. 

THE STATES AND TERRITORIES. 

National Authority. — While there has always been 
a tendency to unite to local self-government some 
national authority, at the same time there was great 
reluctance to establish a vigorous central govern- 
ment, for fear that it would override the State 
governments. It was an exceedingly difficult and 
delicate task to so adjust the relations of the na- 
tional government to jealous and vigilant local gov- 
ernments that the national authority would be 
strong enough to protect and promote the common 
interests of all the States, and at the same time not 
materially interfere with the local interests and 
needs of each State. The deplorable condition of 
affairs at the close of the war with Great Britain 
forced the States to agree upon a national form of 
government strong enough to command obedience 
at home and respect abroad. To this central gov- 
ernment were delegated extensive powers, and in 
matters affecting the general interests it became 
the supreme power of the land, while the States 
still possess all the powers not delegated to the gen- 
eral government. As a result we have, (1) Nation- 
al authority as represented by the government of 
the United States ; and (2) Local self-government 
as represented by the several State governments. 



THE STATES AND TERRITORIES. 143 

Division of Powers between States and Nation. — The 
powers delegated to the United States are enumer- 
ated in the Constitution. All other powers, except 
those prohibited to the States by the Constitution, 
are reserved to the individual States or to the people. 
Powers granted to Congress may, with some ex- 
ceptions, be exercised by the States, provided Con- 
gress does not see fit to exercise them, but all such 
legislation must yield to any subsequent legislation 
that Congress may adopt. For example, the States 
have legislated concerning bankruptcies, as there is 
at present no national bankrupt law. If Congress 
should at any time pass such a law, State legisla- 
tion on the subject would become void. The jurisdic- 
tion of the national government is limited to a few 
enumerated objects that concern the general wel- 
fare of all the States. The State governments have 
control and regulation of all the ordinary and every- 
day concerns of life, the protection of property and 
of the lives and liberties of the people, the erection 
and maintenance of schools and of benevolent and 
reformatory institutions, the enactment of laws of 
inheritance, the regulation of municipal institu- 
tions, and in fact all other matters relating to the 
internal order, improvement, and prosperity of the 
States. 

Absolute Prohibitions. — Some of the restraints im- 
posed by the Constitution upon the States may be 
removed by the consent of Congress; other pro- 
hibitions are absolute, and can in no case be relaxed 
or removed by Congress. The Constitution uncon- 
ditionally forbids the States, 



144 THE GOVERNMENT OF THE UNITED STATES. 

1. To enter into any treaty, alliance, or con- 

federation ; 

2. To grant letters of marque or reprisal ; 

3. To coin money, emit bills of credit, and to 

make anything but gold and silver coin a 
tender in payment of debts ; 

4. To pass any bill of attainder, ex post facto 

law, or law impairing the obligation of 
contracts ; 

5. To grant any title of nobility. 

For the States to make treaties, alliances, or con- 
federations would put in jeopardy the friendly rela- 
tions of the States to one another, inasmuch as 
some States might enter into engagements with 
foreign powers that might be at variance with the 
interests of other States; to allow the States to 
grant letters of marque and reprisal would place it 
within the power of any one State to involve all 
the others in war with foreign countries ; to permit 
the States to coin money would destroy all uniform- 
ity in the currency. The reasons that had weight 
in prohibiting the United States from passing any 
bill of attainder and ex post facto law, or granting 
any title of nobility, have equal weight as against 
the States. 

Prohibitions in the Constitution are prohibitions on federal 
action, unless the States are especially mentioned. 

Bills of Credit. — During the Kevolutionary War, 
the States, as well as Congress, issued bills of credit; 
that is, paper obligations to pay, at some future 
time, to persons holding them, certain specified sums 
of money. These paper obligations were issued and 



THE STATES AND TERRITORIES. 145 

intended to circulate as money among the people, 
but, owing to the failure of the States to redeem 
them, they rapidly depreciated in value and finally 
became worthless. It is said that at one time dur- 
ing the war sixteen hundred dollars of it was asked 
for a suit of clothes. As a natural result immense 
losses were inflicted on the individuals holding this 
paper currency, business was broken up, fortunes 
were destroyed, and public and private credit utterly 
prostrated. To avoid a recurrence of such evils, 
this prohibition was framed. 

Bills of credit, in the sense of the Constitution, do not in- 
clude bank-notes issued by a State bank, or written contract, 
by which a State binds itself to pay money, at a future day, 
for services actually received or for money borrowed for pres- 
ent use; but simply obligations of the State intended to cir- 
culate from hand to hand as money, like the paper currency 
issued by the colonies and States down to the date of the 
Constitution. 

Gold and Silver a Legal Tender. — That no State 
shall make anything but gold and silver coin a 
tender in payment of debts is naturally associated 
with the prohibition that no State shall emit bills 
of credit. The same reasons which show the ne- 
cessity of denying to the States the right to coin 
money prove with equal force that they ought not 
to be at liberty to substitute a paper medium in the 
place of gold and silver. 1 A healthy and sound 
currency is absolutely indispensable in commercial 
transactions. This was amply proven by the ap- 
palling disasters and general bankruptcy which a 

1 Madison, " The Federalist," No. 44, p. 350. 

7 



146 THE GOVERNMENT OF THE UNITED STATES. 

changing and depreciating paper currency brought 
upon the whole country, previous to the adoption 
of the Constitution. 

The Obligation of Contracts. — A contract is an agree- 
ment, upon sufficient consideration, to do or not to 
do a particular thing. 1 Unless individuals and states 
should recognize the binding force of contracts, 
there would be no security in commercial trans- 
actions, and no ground for that trust which lies at 
the basis of society. Under the Articles of Con- 
federation, the States repeatedly legislated without 
any regard for the rights of persons under existing 
contracts. The relation of debtor and creditor was 
subject to constant changes. So grievous were the 
evils resulting from such legislation that the f ramers 
of the Constitution determined to impose an effec- 
tual check on any attempt of State legislatures to 
interfere with the obligation of contracts. Con- 
tracts are of endless variety, and affect nearly every 
detail of private and business life. They may be 
formed between a state and its citizens as well as 
between private individuals. Although this prohi- 
bition, that no State shall pass any law impairing 
the obligation of contracts, seems to be free from 
all ambiguity, it has given rise to more discussion 
and controversy, and been the occasion of more 
protracted litigation, than any other clause of the 
Constitution. 

Conditional Prohibitions. — The Constitution fur- 



1 Blackstone, " Commentaries on the Laws of England," 
bk. II. p. 441. 



THE STATES AND TERRITORIES. 147 

thermore forbids the States, without the consent of 
Congress, 

1. To lay any imposts or duties on imports 

or exports, except what may be absolute- 
ly necessary for executing its inspection 
laws, or to lay any- duty on tonnage ; 

2. To enter into any agreement or compact 

with another State, or with a foreign 
power ; 

3. To keep troops or ships of war in time of 

peace, or to engage in war, unless actually 
invaded, or in such imminent danger as 
will not admit of delay. 
The first is to guard against all unjust discrimina- 
tions on the part of any of the States in their com- 
mercial relations with one another ; the second is to 
prevent any combination between States, or agree- 
ment with foreign powers, to the injury of other 
States ; the third is to prevent any State from main- 
taining a military force that would be likely to en- 
danger the general safety, or be a cause of jealousy 
between bordering States. Treaties, alliances, and 
confederations, which are absolutely prohibited by 
the Constitution, differ from the agreements and 
compacts which may be entered into with the con- 
sent of Congress in this : the first are made for per- 
petuity or for a considerable time, the latter are 
made for temporary purposes. Both are designed 
to cut off all connection or communication between 
a State and a foreign power. 1 The federal govern- 

1 Holmes v. Johnson, 14 Peters, p. 572. 



148 THE GOVERNMENT OF THE UNITED STATES. 

ment is supreme in all that pertains to foreign af- 
fairs, to duties on imports, and to war. 

By troops is not meant militia, which the States are expected 
to maintain. A tonnage duty is a duty on ships estimated by 
the ton. 

Inspection Laws. — Inspection laws are laws de- 
signed for the inspection of various commodities, as 
flour, meat, etc., with a view to improve the quality 
of the products of the country, and to fit the same 
for exportation or for domestic use. To meet the 
expense of enforcing these inspection laws the States 
may levy imposts or duties on commodities brought 
into and carried out of a State. While such a pro- 
vision seemed necessary to meet the charges of in- 
spection, there was danger that those States having 
convenient seaports would, under color of inspection 
laws, levy heavy contributions on the productions 
of those States that were obliged to pass through 
their ports to foreign markets, or on imports from 
other States, for the purpose either of securing a 
revenue, or of protecting and encouraging their own 
manufactures and commerce. Thus would be re- 
vived the evils that aroused resentments and created 
dissensions among the States under the Confedera- 
tion. To avoid these dangers the following safe- 
guards were adopted : 

1. That only such duties should be levied as 

were absolutely necessary for executing 
the inspection laws ; 

2. That the net produce of all duties and im- 

posts, laid by any State on imports or ex- 



THE STATES AND TERRITORIES. 149 

ports, should be for the use of the Treas- 
ury of the United States ; 
3. That all such laws should be subject to the 
revision and control of Congress. 1 
These restrictions apply equally to any imposts or 
duties that may be levied with the consent of Con- 
gress. 

Other Provisions. — For the sake of uniformity and 
of preserving a fraternal feeling among the States, 
the Constitution provides : 

1. That full faith and credit in every State shall 

be given to the public acts, records, and 
judicial proceedings of each State. 

2. That citizens of each State shall be entitled 

to all the privileges and immunities of 
citizens in the several States ; 

3. That a person charged in any State with 

treason, felony, or other crime, who shall 
flee from justice, and be found in another 
State, shall, on demand of the executive 
authority of the State from w^hich he fled, 
be delivered up, to be removed to the 
State having jurisdiction of the crime ; 

4. That no person held to service or labor in one 

State, under the laws thereof, escaping 
into another, shall, in consequence of any 
law or regulation therein, be discharged 
from such service or labor, but shall be 
delivered up on claim of the party to 
whom such service or labor may be due. 2 

1 The Constitution, Article I. sec. 10, cl. 2. 

2 The Constitution, Article IV. sees. 1, 2. 



150 THE GOVERNMENT OF THE UNITED STATES. 

State Records. — As each State has a separate or- 
ganization, serious misunderstandings and grave 
contentions would necessarily arise, unless full 
faith and credit were given in every State to the 
public acts, records, and judicial proceedings of 
each State. It is not the intention of this provision 
that the jurisdiction of one State shall extend into 
the domain of another, but that whatever one 
State does in the exercise of its lawful jurisdiction 
shall be valid in every other State. Judgments 
rendered in the courts of one State cannot be called 
in question in the courts of any other. If questions 
and titles once tried and decided could be again 
open to litigation, by either of the parties remov- 
ing from the jurisdiction of one State to that of 
another, endless confusion would follow. The ju- 
dicial proceedings spoken of in this clause refer 
only to civil cases. Congress has prescribed the 
manner in which the acts, records, and proceedings 
shall be authenticated, and declared that the said 
records and judicial proceedings, so authenticated, 
shall have such faith and credit given to them in 
every court within the United States as they have 
by law or usage in the courts of the State from 
which they are taken. 1 

Privileges of Citizens of States. — Among the rights 
belonging to an individual as a citizen of a State 
may be mentioned, the right of a citizen of one 
State to pass through or to reside in any other State, 
for purposes of trade, agriculture, professional pur- 

1 "Revised Statutes of the United States," sec. 906. 



THE STATES AND TERRITORIES. 151 

suits, or otherwise ; the right to institute and main- 
tain actions of every kind in the courts of the State ; 
to acquire and dispose of property ; to be exempt 
from higher taxes or impositions than are paid by 
the citizens of other States ; to enjoy the equal pro- 
tection of the laws. 1 The provision that the citi- 
zens of each State shall be entitled to all privileges 
and immunities of citizens in the several States is a 
declaration to the States that whatever rightst he 
several States grant to their own citizens, or what- 
ever restrictions they impose on their exercise, the 
same, neither more nor less, shall be the measure 
of the rights of citizens of other States within their 
jurisdiction. 2 It has been justly said that no pro- 
vision in the Constitution has tended so strongly 
to constitute the citizens of the United States one 
people as this. 

Privileges of Citizens of the United States. — As the 
rights of State citizenship correspond to the func- 
tions and duties of the State governments, so the 
rights of federal citizenship correspond to the func- 
tions and duties of the federal government. To avail 
one's self of postal facilities, to engage in foreign 
and interstate commerce, to have access to the 
courts of justice, to enjoy all rights secured to citi- 
zens by treaties with foreign governments, to pe- 
tition for redress of grievances, to demand the care 
and protection of the federal government when 
upon the high seas or within the -jurisdiction of a 

1 Garfield v. Coryell, 4 Washington C. C. p. 380. 

2 Slaughter-House Cases, 16 Wallace, p. 36. 



152 THE GOVERNMENT OF THE UNITED STATES. 

foreign government, are among the privileges of 
citizens of the United States. 1 The Constitution 
declares that no State shall make or enforce any 
law which shall abridge the privileges and immu- 
nities of citizens of the United States. 2 

Fugitive Offenders. — It is a question concerning 
which there has been much dispute whether, inde- 
pendent of treaty stipulations, a nation is under 
any obligation to surrender a fugitive from justice 
who has sought refuge there. Whatever view may 
be taken as to the obligations of foreign nations, it 
is of vital importance in a national union like our 
own that criminals fleeing from justice, and found 
in another State, should be delivered up to the State 
having jurisdiction, to answer for their crimes. 
Otherwise the States would be asylums for rogues, 
and criminal offences would rapidly increase. The 
mutual effort to suppress crime tends to promote 
harmony and good feeling among the States. 

Fugitives from Service or Labor. — At the time tho 
Constitution was framed a great deal of concern 
was felt by the Southern members of the Constitu- 
tional Convention with respect to the security of 
their slave property. Although at this time slavery 
existed in all the States, with the exception of Mas- 
sachusetts, it was likely soon to disappear from the 
States of New Hampshire, Rhode Island, Connecti- 
cut, New York, and Pennsylvania. In these States, 
therefore, the relation of master and slave not be< 

1 Slaughter-House Cases, 10 Wallace, p. 86. 

2 The Constitution, Amendments, Article XIV. 



THE STATES AND TERRITORIES. 153 

ing recognized, there would be no means of enforc- 
ing the return of a slave to the State from which 
he had fled. If a relation between persons, exist- 
ing by the law of a particular State, was to be 
broken up by an escape into another State, because 
such a relation was unknown to or prohibited by 
the law of that State, the right of the master to the 
services of the slave would be wholly insecure. 1 
Fearing that the Southern States would not accept 
the Constitution without a special provision where- 
by slaves that escaped into other States might be 
reclaimed, this clause respecting fugitives from ser- 
vice or labor was unanimously adopted. Happily 
with the abolition of slavery that part of the pro- 
vision relating to slaves has become obsolete, and 
although the provision included apprentices as well 
as slaves, it is of little force or value. 

The Admission of States. — New States may be ad- 
mitted by Congress into the Union. But no new 
State can be formed or erected within the juris- 
diction of any other State, nor can any States be 
formed by the junction of two or more States or 
parts of States, without the consent of the legisla- 
tures of the States concerned, as well as of Con- 
gress. 2 These two precautions were designed to 
quiet, 

1. Tlie fears of the larger States that new 
States might be formed by the partition 
of a State, without its consent ; 

1 Curtis, " History of the Constitution," vol. ii. p. 450-452. 
3 The Constitution, Article IV. sec. 3,cl. 1. 

7* 



154 THE GOVERNMENT OF THE UNITED STATES. 

2. The fears of the smaller States that two or 
more States, without their consent, might 
be united to form a large State. 
That no new State shall be formed without the con- 
currence of the federal authority and that of the 
States concerned, is in keeping with the principles 
which ought to govern such transactions. 1 The 
Articles of Confederation contained no provision 
relating to the admission of new States. This was 
apparently overlooked. 

How States are Admitted. — Congress has discretion- 
ary power over the admission of a new State. It 
may refuse to admit, or it may impose conditions 
before admitting it. Questions as to whether the 
Constitution is republican in form, whether any 
serious evil exists, whether there is a sufficient 
population, and others of a like character, will 
naturally arise. States have usually been admitted 
either, 

1. By Congress passing what is called an en- 

abling act, authorizing the people to frame 
and adopt a constitution, and providing 
for the admission of the State when cer- 
tain conditions are complied with ; 

2. By the people of a territory forming a con- 

stitution and electing officers to adminis- 
ter it, and then submitting the same to 
Congress, and applying for admission un- 
der it. 
No State can now be admitted into the Union with- 

1 Madison, " The Federalist," No. 43, p. 340. 



THE STATES AND TERRITORIES. 155 

out having the necessary population to entitle it to 
at least one member of the House of Representa- 
tives. When a State is admitted, the public lands, 
with the exception of what are granted by Con- 
gress to the State for school or other purposes, still 
remain the property of the United States, and are 
subject to the same provisions that all other public 
lands are subject to. 

Territory and other Property. — Congress has full 
power to dispose of and make all needful rules and 
regulations respecting the territory or other prop- 
erty belonging to the United States, with the pro- 
viso that nothing in the Constitution shall be so 
construed as to prejudice any claims of the United 
States, or of any particular State. 1 This proviso 
was rendered necessary by reason of the contro- 
versies concerning the western territory, to which 
reference is made in the following paragraph. 

The Western Territory. — Several of the States laid 
claim to large tracts of unoccupied territory which 
really lay outside of their proper boundaries, but 
were embraced within the vague descriptions of 
their charters. Those States which had none of this 
territory insisted that as it had been wrested from 
the crown by the blood and treasure of all the 
States, it should be considered common property, 
and that the proceeds of its sale ought to go to de- 
fray the expenses incurred in the Revolutionary 
War by all the colonies. This subject gave rise to 
long and ardent controversies. Finally Congress, 

1 The Constitution, Article IV. sec. 3, cl. 2. 



156 THE GOVERNMENT OF THE UNITED STATES. 

in order to induce the States to cede the western 
territory to the United States, pledged its faith 
that if the cession were made, the lands should be 
disposed of for the common benefit of the United 
States, and should be settled and formed into dis- 
tinct republican States, to become members of the 
federal Union, with the same rights as other States. 
All other States, except North Carolina and Georgia, 
ceded their western lands to the United States, 
prior to the adoption of the Constitution. 1 It is to 
Georgia and North Carolina that the proviso refers 
that nothing in the Constitution shall be so con- 
strued as to prejudice any claims of the United 
States, or of any particular State. Soon after the 
adoption of the Constitution, these two States re- 
linquished their claim to the lands in dispute. 

1. The province of Louisiana was purchased from France; 
Florida, from Spain ; Texas was annexed at its own request; 
a large tract of territory was obtained from Mexico ; the Rus- 
sian possessions in America have been added within a few- 
years. 

2. Owing to the vague character of the grants of the crown 
to different colonies, there was much uncertainty in regard to 
their boundaries. Under their original charters, Virginia, 
North Carolina, and Georgia maintained that their western 
boundary was the Mississippi Eiver. Virginia, for example, 
claimed within its chartered limits country now occupied by 
Kentucky, Ohio, Indiana, and Illinois. Other States also laid 
claim to western lands. The territory ceded by the States to 
the general government amounted to more than the area of 
the thirteen original States. 

Government of the Territories. — In order to secure 
the settlement of this vast tract of country, special 

1 Pomeroy, " Constitutional Law," pp. 395, 396. 



THE STATES AND TERRITORIES. 157 

inducements were offered by Congress to settlers, 
as, for example, grants of homesteads on condition 
that the land should be cultivated for a certain 
number of years, gifts of land for school purposes 
and to encourage the building of railroads. From 
this domain have been formed territories, and gov- 
ernments organized. Many of these have since be- 
come States. Although the form of territorial gov- 
ernment has varied somewhat, the government of 
each territory now consists of a governor, judges, 
and certain other officers appointed by the Presi- 
dent, with the advice and consent of the Senate, 
and a legislature composed of representatives 
chosen by the people. All legislation is, however, 
subject to the control of Congress, and it may at 
any time legislate for the territories, and subject 
their organization to any change it sees fit. The 
territories have no share in presidential elections, 
and no senators or representatives in Congress. 
Each territory is allowed to send a delegate to the 
House of Representatives, but he cannot vote. He 
may take part in the discussions of the House, give 
expression to the wishes and grievances of the peo- 
ple whose delegate he is, and endeavor to shape all 
legislation affecting the interests of his own terri- 
tory. 

A Republican Form of Government Guaranteed. — The 
Constitution declares that the United States shall, 

1. Guarantee a republican form of govern- 

ment to every State in the Union ; 

2. Protect each State against invasion ; 

3. On the application of the legislature or the 



158 THE GOVERNMENT OF THE UNITED STATES. 

executive, when the legislature cannot be 
convened, protect each State against do- 
mestic violence. 1 
The aim of the first is to give permanency to repub- 
lican institutions ; the second provides against the 
danger of foreign invasion; the third guarantees 
aid to a State in case of domestic violence, when 
the State government desires protection. All are 
designed to suppress any tendency whatever to 
overthrow a republican form of government, and 
to substitute some other. Unless such authority 
were given to the national government, the liber- 
ties of the people might be destroyed by a power- 
ful faction or by foreign aggressions, domestic vio- 
lence take the place of law and order, and the safety 
of the Union be endangered by a successful rebellion 
in a single State. The incapacity of the government 
under the Confederation to afford aid to any one of 
the States in times of internal disturbance and peril 
was one of the causes which led to the adoption of 
the Constitution. 

1 The Constitution, Article IV. sec. 4. 



CHAPTEK XIII. 

THE EXECUTIVE DEPARTMENT. 

Executive Power, in whom Vested. — All legislative 
power is vested in the two Houses of Congress ; the 
judicial power, in the several United States courts ; 
but the executive power is vested in one person, 
the President. To make the laws, and to decide 
with reference to them, require the combined wis- 
dom of many persons ; but to promptly put these 
laws into execution requires the exercise of a single 
will. It is not for the executive to decide upon 
the wisdom or the expediency of the laws, but 
when laws are made it remains for him to see 
that they are promptly enforced. It was a matter 
of considerable discussion among the framers of 
the Constitution, whether the responsibility of exe- 
cuting the laws should be intrusted to one person 
or to a national council. It was wisely decided 
that as there was danger of rivalry and discord in 
an executive council, and necessarily feeble and un- 
certain execution, this power should be intrusted 
to a single executive, and he should be held strict- 
ly responsible for its proper use. 

Qualifications of President. — That a person may be 
eligible to the office of President, the Constitution 
requires, 

1. That he shall be a natural-born citizen ; 



160 THE GOVERNMENT OF THE UNITED STATES. 

2. That he shall have attained the age of 

thirty-five years ; 

3. That he shall have been fourteen years a 

resident within the United States. 
It would be unwise to intrust an office so vital to 
the liberties of the people to a person born in a for- 
eign country, or even to a natural-born citizen who 
had not reached a mature age, and whose character 
was not fully developed, and generally known, by 
reason of faithful and continued public service. So 
important did it seem that this high office should 
be carefully guarded from all foreign influence that 
long absence in a foreign country was considered 
a disqualification. Persons born in foreign lands 
who were citizens of the United States at the time 
of the adoption of the Constitution were not ineli- 
gible to the office of President. This was in ac- 
knowledgment of the obligation of the country to 
the noble men who in the Revolutionary War risked 
their lives in defence of their adopted country. 

Term of Office. — In the Constitutional Convention 
there existed much difference of opinion regarding 
the length of the term of office of the chief execu- 
tive. A few of the delegates urged that the ten- 
ure of office should be during good behavior ; the 
rest favored a short term, but differed as to the num- 
ber of years. It was finally decided that the Pres- 
ident should be chosen for a period of four years. 
This is intermediate between the term of office of 
senator and that of representative. Several times 
a President has been re-elected, but no one has been 
nominated or elected for a third term. 



THE EXECUTIVE DEPARTMENT. 161 

The Vice-President. — In hereditary monarchies, on 
the death of the sovereign, the executive power 
devolves upon the members of his family in a des- 
ignated order. A fixed rule of succession is agreed 
upon. In our own country, a Vice-President is 
chosen to succeed the President in case of his re- 
moval from office, or of his death, resignation, or 
inability to discharge his duties. The qualifica- 
tions and term of office of the Vice-President are 
the same as those of the President. It is manifest- 
ly proper that the same safeguards should be thrown 
around this office that the public safety requires to 
be thrown around the office of President. It is 
furthermore provided that Congress may by law 
provide for the case of removal, death, resignation, 
or inability, both of the President and Vice-Presi- 
dent, declaring what officer shall then act as Presi- 
dent until the disability be removed or a President 
shall be elected. 1 

It is the duty of the Vice-President to preside 
over the deliberations of the Senate. 

Congress has provided that in case of the inability of both 
the President and the Vice-President to act, the office of Presi- 
dent shall devolve upon a member of the y Cabinet, the order 
of succession being, Secretary of State, Secretary of the Treas- 
ury, Secretary of War, the Attorney-General, the Postmaster- 
General, Secretary of the Navy, Secretary of the Interior. 

Manner of Choosing the President. — How the chief 
magistrate should be chosen long baffled the Consti- 
tutional Convention, and it was not till just before 
its close that a decision was ultimately reached. 

1 The Constitution, Article II. sec. 1, cl. 6. 



162 THE GOVERNMENT OF THE UNITED STATES. 

Various plans were proposed, among these the elec- 
tion of the executive by the national legislature, by 
the people at large, by the State legislatures, by the 
executives of the States, and by electors. At one 
time the convention reluctantly decided to confer 
upon the national legislature the office of electing 
the President, but there was this grave objection, 
that the executive would be made dependent on 
the legislative branch of the government, and con- 
sequently independence of action on the part of 
the executive department would be destroyed. 
There was also an additional objection that the 
President would be likely to seek by bargains and 
compromises to conciliate members of Congress in 
order to secure his own re-election. It was at last 
decided that each State should appoint, in such man- 
ner as its legislature should direct, a number of elec- 
tors equal to the w^hole number of senators and rep- 
resentatives to which the State is entitled in Con- 
gress. It will be observed that each State has the 
same representation in the electoral college that 
it has in Congress, so that the electoral college 
may be said to be an exact counterpart of the joint 
convention of the two Houses of Congress. In 
order to avoid the danger of undue influence on 
the part of the officers of the government in the 
election of President or Vice-President, the Consti- 
tution declares that no senator or representative, or 
person holding an office of trust or profit under the 
United States, shall be appointed an elector. 1 

'The Constitution, Article II. sec. 1, cl. 2. 



THE EXECUTIVE DEPARTMENT. 163' 

1. A presidential candidate may receive a majority of the 
electoral votes, and yet not be the choice of a majority of the 
actual voters in all the States. 

2. " The election of a supreme executive magistrate for a 
whole nation affects so many interests, addresses itself so 
strongly to popular passions, and holds out such powerful 
temptations to ambition, that it necessarily becomes a strong 
trial to public virtue and even hazardous to the public tran- 
quillity." — Kent, " Commentaries on American Law, 17 vol. i. 
p. 274 

Time of Choosing Electors. — To Congress is given 
the power to determine the time of choosing elec- 
tors, and the day on which they shall give their 
votes. The clay must, however, be the same through- 
out the United States. 1 Congress has accordingly 
fixed upon the Tuesday next after the first Mon- 
day in November, of every fourth year, as the time. 
Although it is left with the legislature of each State 
to designate the manner in w^hich electors shall be 
appointed, it is now the custom for them to be 
chosen directly by the people. At first there was 
no uniformity in their appointment. 

Meeting of Electors. — The electors meet in their 
respective States, and vote on separate ballots for 
President and for Vice-President, one of whom, at 
least, must not be an inhabitant of the same State 
with themselves. 2 It was not thought expedient 
to require the electors to travel long distances to 
the seat of government, for the sole purpose of cast- 
ing their votes. Care has been taken to guard against 
the selection of President and Vice-President from 



'The Constitution, Article II. sec 1, cl. 4. 
2 The Constitution, Amendments, Article XII. 



164 THE GOVERNMENT OF THE UNITED STATES. 

the same State. Originally the Constitution re- 
quired that the electors should place the names of 
two persons on their ballots, and that the person 
having the greatest number of votes should be Pres- 
ident, and the person having the next highest num- 
ber should be Vice-President, provided each received 
a majority of the votes of the whole number of 
electors appointed. This was afterwards changed, 
by a constitutional amendment, to the present plan. 

The time of meeting is the second Monday in January, fol- 
lowing the year in which they are appointed, at such place in 
each State as the legislature directs. 

Certified Lists of Votes. — The electors then make 
distinct lists of all persons voted for as President, 
and of all persons voted for as Yice-President, and 
of the number of votes for each, which lists they 
are required to sign and certify, and transmit sealed 
to the seat of government, directed to the presi- 
dent of the Senate. 

To provide against all contingencies it is provided by act 
of Congress that three certificates shall be made, one to be de- 
livered, by some one appointed by the electors for this purpose, 
to the president of the Senate; a second to be forwarded to 
him by mail; a third to be delivered to the judge of the dis- 
trict in which the electors assemble. 

Counting the Votes. — The president of the Senate, 
in the presence of both Houses of Congress, opens 
all the certificates, and the votes are then counted. 
The person having the greatest number of votes for 
President is declared President, if such number is a 
majority of the whole number of electors appoint- 
ed, and in like manner, the Vice-President. The 



THE EXECUTIVE DEPARTMENT. 165 

joint meeting of the two Houses is held in the hall 

of the House of Representatives. 

The time for counting the votes is the second Wednesday 
in February succeeding the meeting of the electors. 

Failure to Elect. — In case no one receives the re- 
quired majority, either for the office of President or 
of Vice-President, the Constitution confers upon the 
House of Representatives the choice of President, 
and upon the Senate the choice of Vice-President. 
The Lower House, representing as it does the popu- 
lar will, is more likely to reflect the wishes of the 
people at large in the selection of the President ; 
while to the Senate naturally belongs the office of 
electing the Vice-President, who by virtue of his 
office becomes the presiding officer of that body. 

Election by the House of Representatives. — The 
House of Representatives is required to choose by 
ballot the President from the persons having the 
highest numbers, not exceeding three, on the list of 
those voted for as President. The votes must be 
taken by States, the representatives from each State 
having but one vote, a quorum for this purpose con- 
sisting of a member or members from two thirds of 
the States, and a majority of all the States being 
necessary to a choice. If a choice is not made by 
the House of Representatives before the fourth of 
March next following, the Vice-President acts as 
President. The mode of voting by States was 
adopted to please the small States. 

In the selection of the President by electors, the large States 
have the advantage ; in an election by the House of Repre- 
sentatives, the small States enjoy a corresponding advantage. 






166 THE GOVERNMENT OF THE UNITED STATES. 

It must be constantly borne in mind that all through the pro- 
ceedings of the Constitutional Convention there was continual 
strife between the delegates from the large and small States, 
those from the large fearing that their States would not secure 
that political power and influence in the Union that their 
population and wealth entitled them to ; those from the small 
States fearing that their interests would be neglected or sacri- 
ficed. 

Election by the Senate. — When the election of the 
Vice-President devolves upon the Senate, a choice 
must be made from the two persons who have re- 
ceived the highest number of votes on the list of 
those voted for as Vice-President, a quorum for this 
purpose consisting of two thirds of the whole num- 
ber of senators, and a majority of the whole num- 
ber being necessary to a choice. The senators do 
not vote by States, but each casts a separate vote. 

Commencement of Term of Office. — The Congress 
of the Confederation, in terminating its own exist- 
ence, designated the first Wednesday in March as 
the time when the first Congress under the Consti- 
tution should assemble. Three years afterwards, 
Congress, taking this time as a precedent, fixed 
upon the fourth of March as the beginning of the 
presidential term. Owing to the delay in getting 
the returns and counting the votes, Washington was 
not inaugurated until the thirtieth of April. The 
inconvenience and discomfort incident to the out- 
door ceremonies of inauguration during the raw 
month of March would seem to suggest a time 
more favorable for such imposing ceremonies. 

Oath of Office. — To impress the chief magistrate 
with the responsibilities and obligations of his high 



THE EXECUTIVE DEPARTMENT. 167 

office, he is required to take an oath to faithfully exe- 
cute the duties of his office, and to preserve, protect, 
and defend to the best of his ability the Constitution 
of the United States. A solemn affirmation like this 
will have a tendency to make a conscientious man 
more careful in the performance of his duties, and 
will act as a check upon a man who is not gov- 
erned by the highest considerations of duty. The 
oath of office is administered by the Chief-Justice 
of the United States, upon the open portico of the 
Capitol at Washington, under imposing and im- 
pressive surroundings^ in the presence of members 
of both Houses of Congress, judges of the Supreme 
Court, ministers from foreign countries, high civil 
and military officials, and a great concourse of peo- 
ple. After the oath has been administered, the 
President delivers what is called his inaugural ad- 
dress, in which he outlines the purpose and aims of 
his administration. 

Compensation of the President. — The salary of the 
President is fixed by act of Congress, and is at pres- 
ent fifty thousand dollars a year. He has also the 
use of the presidential mansion, called the White 
House, which is furnished and kept in repair, lighted 
and heated, at the public expense. The compensa- 
tion of the chief executive can neither be increased 
nor diminished during his term of office. If his 
salary could be changed at any time by Congress, 
he would be dependent on its bounty, and in his 
public acts he might be influenced by this consider- 
ation. He is prohibited from receiving any other 
emolument from the United States or any of the 



168 THE GOVERNMENT OF THE UNITED STATES. 

States. This is to place him beyond the reach of 
all unworthy influences, so that he may be indepen- 
dent of every consideration but the public good. 
The present service of the White House, its warm- 
ing and lighting, the care of the gardens, the forage 
and stable service, and many other things provided 
for at the public expense, nearly double the Presi- 
dent's salary. 

In the Constitutional Convention, Benjamin Franklin opposed 
the plan of paying the President any pecuniary compensation, 
on the ground "that, in all cases of public service, the less 
profit the greater honor." He cited the example of Washing- 
ton, who for eight years led the armies of the Revolution with- 
out receiving any compensation whatever for his services, to 
prove the practicability of "finding three or four men in the 
United States with public spirit enough to bear sitting in peace- 
ful council for perhaps an equal term, merely to preside over 
our civil concerns, and see that our laws are duly executed." 
See Curtis, "History of the Constitution," vol. ii. p. 405. 

General Plan in the Selection of Officials. — It is rath- 
er a curious fact that, of all the thousands of fed- 
eral officers, only members of the Lower House of 
Congress are selected by a direct vote of the peo- 
ple. Senators are chosen by the State legislatures ; 
the President by a college of electors ; and judges 
and all important federal officials by the President, 
with the advice and consent of the Senate. The 
principle adopted in framing the Constitution was, 
that the people w r ere to select representatives to 
speak for them in the selection of rulers. This 
principle appears in the adoption of the Constitu- 
tion itself, and in the ratification of amendments. 



CHAPTER XIV. 

THE POWERS OF THE PRESIDENT. 

General Powers and Duties. — The powers and du- 
ties of the president, as enumerated in the Consti- 
tution, are, 

1. To see that the laws are faithfully executed ; 

2. To require the opinion, in writing, of the 

principal officer in each of the executive 
departments, upon any subject relating 
to the duties of their respective offices ; 

3. To make appointments, and to commission 

the officers of the United States ; 

4. To command and direct the military and 

naval forces ; 

5. To grant reprieves and pardons for offences 

against the United States ; 

6. To make treaties, and to receive ambassa- 

dors and other public ministers ; 

7. To approve or disapprove bills passed by 

Congress ; 

8. To give to Congress information of the state 

of the Union, and to recommend to their 
consideration such measures as he may 
deem necessary and expedient ; 

9. To convene both Houses, or either of them, 

on extraordinary occasions, and to ad- 
journ them in case of a disagreement be- 



170 THE GOVERNMENT OF THE UNITED STATES. 

tween them as to the time of adjourn- 
ment. 

THE EXECUTION OF THE LAWS. 

Duty of Executing the Laws. — It is the duty of the 
chief executive, as the name implies, to see that the 
laws of the United States are faithfully executed. 
The prompt execution of the laws is indispensable 
to good government. Without this, any form of 
government, however good in theory, is practically 
worthless. The protection of property, the security 
of liberty itself, the happiness, good order, and safety 
of the people, all depend on the steady and ener- 
getic administration of the laws. This duty is, 
therefore, of supreme importance. 

The Cabinet. — Nothing is said in the Constitution 
regarding the formation of an advisory body called 
the President's Cabinet. The President is author- 
ized to require the opinion, in writing, of the prin- 
cipal officer in each of the executive departments, 
upon any subject relating to the duties of their re- 
spective offices, 1 but no provision was made for fus- 
ing these principal officials into a council of state 
to advise the President regarding his policy. Some 
of the leading delegates in the Constitutional Con- 
vention desired to surround the President with a 
Cabinet to assist him in the discharge of his duties, 
'without the power of controlling his actions; but 
the plan was rejected for the reason that the Pres- 
ident of the United States was to be personally re- 

1 Tlie Constitution, Article II. sec. 2, cl. 1. 



THE POWERS OF THE PRESIDENT. 171 

sponsible for every official act, and that the Con- 
stitution should do nothing to diminish that respon- 
sibility, even in appearance. 1 The President cannot 
shield himself behind the acts or advice of a Cabinet. 
He alone is accountable for the proper exercise of 
the power conferred upon him by the Constitution. 
Although no provision is made in the Constitution 
for convening the principal executive officers as a 
council, it is the custom for the President to call 
them together at stated times, and to act upon their 
joint advice on all important mattors. The sessions 
are secret, and no record is kept of the proceedings. 
The members of the cabinet are, Secretary of State, 
Secretary of the Treasury, Secretary of War, the 
Attorney - General, the Postmaster - General, Secre- 
tary of the Navy, Secretary of the Interior. 

It was the custom of Washington to take the opinions of the 
heads of departments separately, and on important occasions 
he called them together, in the form of a council, for oral dis- 
cussion. The next President, John Adams, followed about the 
same practice. Jefferson not only called the heads of depart- 
ments together when important questions arose, but after a 
subject had been discussed it was submitted to a vote of his 
Cabinet. 

Executive Departments. — It would be utterly im- 
possible for the President, alone and unaided, to 
perform the powers and duties of his office. The 
practice in all well-constituted and efficient govern- 
ments is to parcel out executive work among sev- 
eral departments, at the head of each of which is 
placed a chief officer. In the United States these 

1 Curtis, " History of the Constitution," vol. ii. p. 408. See 
note, p. 409. 



172 THE GOVERNMENT OF THE UNITED STATES. 

heads of departments are appointed by the Presi- 
dent, with the advice and consent of the Senate ; 
they act in his name and under his direction, and 
are his confidential advisers. The work of each 
department is carried on by a large number of sub- 
ordinate officers of various grades and functions. 

The head of each department is required to make an annual 
report to Congress. The subjects concerning which detailed 
statements are required are designated by law. 

The Department of State. — The Department of State 
ranks the highest in importance. It is not only the 
medium through which all negotiations with for- 
eign nations are carried on, and whatever relates 
to foreign affairs, but it also has other, and equally 
important, duties to perform. It is required to pre- 
serve the original copies of all acts, resolutions, and 
orders of Congress ; to publish and promulgate all 
laws passed by Congress, amendments to the Consti- 
tution, and such other matters as are required by 
law to be published. The Secretary of State is the 
custodian of the great seal of the United States, 
and he countersigns and affixes the seal to all exec- 
utive proclamations, to various commissions, and to 
other executive papers. It is also through him that 
correspondence between the President and the gov- 
ernors of States is carried on. 

The Department of the Treasury. — Next in impor- 
tance to the Department of State is the Department 
of the Treasury, which has the management of the 
national finances. It superintends the collection 
of the revenues for the support of the government, 
pays out money in pursuance of appropriations 



THE POWERS OF THE PRESIDENT. 173 

made by Congress, keeps an account of receipts 
and expenditures, and is responsible for the care of 
all public moneys. The Secretary of the Treasury 
has control of the erection of public buildings, the 
coinage of money, the custom-houses, the collection 
of commercial statistics, the life-saving service, ma- 
rine hospitals, light-houses, beacons, and whatever 
relates to the security of navigation. To this de- 
partment is intrusted the execution of all laws 
passed by Congress for the regulation of commerce 
and navigation. One of its most important duties 
is each year to submit to Congress estimates of the 
amount of money it will require to meet the cur- 
rent expenses of the government. 

The Department of War. — The Department of War 
has the general oversight of the army, the military 
academy at West Point, arsenals, military hospitals, 
asylums, and prisons, military stores, and such other 
matters as relate to military affairs. Storm signals, 
weather reports, river and harbor surveys, are under 
the supervision of this department. The Secretary 
of War represents the President in his capacity as 
commander-in-chief of the army. 

The Department of Justice. — The Attorney-General, 
who is at the head of the department of justice, 
acts as the legal adviser of the President and of the 
heads of departments. He represents the United 
States in all suits before the Supreme Court, and 
he exercises a general superintendence and direc- 
tion over all United States district attorneys and 
marshals. 

The Post-Office Department. — The Post-Office De- 



174 THE GOVERNMENT OF THE UNITED STATES. 

partment has the general supervision of every- 
thing relating to the carrying of the mails, and 
the establishment of post-offices and postal com- 
munications. 

The Department of the Navy. — The Department of 
the Navy has the general oversight of the navy, the 
naval academy at Annapolis, naval asylums and 
hospitals, navy yards and stores, and such other 
matters as relate to naval affairs. The naval ob- 
servatory and coast survey are under the supervi- 
sion of this department. 

The Department of the Interior. — The Department 
of the Interior is charged with the supervision of 
public business relating to the census, the Indians, 
pensions, patents for inventions, education, public 
lands including mines, land surveys, and the distri- 
bution of public documents. When this depart- 
ment was created various duties that were previ- 
ously performed by other departments were trans- 
ferred to it, and as a natural result it is less homo- 
geneous than the others. 

The Department of Agriculture. — In addition to the 
departments already mentioned is a Department of 
Agriculture, at the head of which is a Commissioner 
of Agriculture. He is appointed in the same man- 
ner as the other heads of departments, but is not a 
member of the Cabinet. It is his duty to collect 
and disseminate useful information relating to agri- 
culture, to collect and distribute new and valuable 
seeds and plants, and to promote the interests of 
agriculture and horticulture throughout the coun- 
try. Skilful chemists and naturalists are employed 



THE POWERS OF THE PRESIDENT. 175 

to gather information, to make tests, and to pursue 
original investigations. 

THE APPOINTMENT OF OFFICERS. 

The Power to Appoint. — The President nominates, 
and, with the advice and consent of the Senate, ap- 
points, 

1. Ambassadors, other public ministers, and 

consuls ; 

2. Judges of the Supreme Court ; 

3. All other officers of the United States whose 

appointments are not in the Constitution 
otherwise provided for, and which shall 
be established by law. 
But Congress may by law vest the appointment of 
such inferior officers, as they think proper, in the 
President alone, in the courts of law, or in the heads 
of departments. 1 In order to restrain the President 
from practically creating offices by the power of 
appointment, his power is limited to offices estab- 
lished by law, and to those especially enumerated 
in the Constitution. 2 With the exception, therefore, 
of the President, Vice-President, members of Con- 
gress, judges of the Supreme Court, and diplomatic 
agents and consuls, Congress alone has the power 
to create offices by law, and to define the duties of 
each. It may prescribe conditions and qualifica- 
tions, and may vest the appointment of inferior of- 
ficers in the President, in the courts of law, or in 



1 The Constitution, Article II. sec. 2, cl. 2. 

2 Curtis, " History of the Constitution," vol. ii. p. 418. 



176 THE GOVERNMENT OF THE UNITED STATES. 

the heads of departments. When Congress has done 
this, its power in this direction ceases. It then re- 
mains for the President, or such other officials as 
may be designated by Congress, to fill the offices. 
All vacancies that may happen during the recess 
of the Senate the President has authority to fill, 
by granting commissions which shall expire at the 
end of the next session. 1 Unless provision were 
made for filling such vacancies, the public service 
might be seriously impaired. The Constitution is 
silent with respect to the power of removal from 
office, where the tenure is not fixed, but it is a 
recognized principle that the power of removal is 
incident to that of appointment. 2 

The President appoints the heads of departments, judges of 
the federal courts, diplomatic agents and consuls, revenue col- 
lectors, postmasters whose salaries are over $1000 a year, civil- 
service commissioners, military and naval officers, and all the 
most important government officials. The appointment of 
other civil officers has been vested by Congress in department 
officials and the courts of law. The Postmaster-General, next 
to the President, controls the most patronage. 

Mode of Making Appointments. — "When appoint- 
ments require the consent of the Senate, it is the 
custom of the President to send to that body, in 
writing, the names of the persons whom he has 
selected, and the office he designs each to fill. The 
Senate in secret session considers the fitness of these 
nominations. If any one of them is rejected, he sends 
another name for the consideration of the Senate, 

1 The Constitution, Article II. sec. 2, cl. 3. 

2 Ex parte Hennen, 13 Peters, p. 258. 



THE POWERS OF THE PRESIDENT. 177 

although he may repeat his first nomination, as has 
sometimes happened. If a majority of the Senators 
approve of a nomination, the President grants a 
commission to the person named, as the evidence of 
his appointment. This is signed by the President, 
and to it is affixed, by the Secretary of State, the 
seal of the United States. The Constitution de- 
clares that the President shall commission all the 
officers of the United States. 1 

Civil-Service Commission. — As the President is held 
responsible for the execution of the laws, it is un- 
questionably proper that he should be allowed, 
within certain limits and under certain restrictions, 
to choose as his agents those having his personal 
confidence. The heads of departments and chief 
executive officers should be in harmony with the 
policy of his administration. It has, however, un- 
happily grown to be the custom for Presidents to 
appoint persons to office as a rew T ard for mere party 
service, and to remove others from office for party 
opposition. As a result, unfit persons are often ap- 
pointed, and meritorious officials are wantonly re- 
moved. This demoralizing practice, popularly de- 
nominated the " spoils system," which w T as inau- 
gurated by Jefferson and greatly enlarged in its 
scope by Jackson, has been followed to a greater 
or less extent by all the Presidents since Jackson's 
time. For some time past thoughtful men, recog- 
nizing the growing character of this evil in the ad- 
ministration of public affairs, have sought to bring 

1 The Constitution, Article II. sec. 3. 
8* 



178 THE GOVERNMENT OF THE UNITED STATES. 

about certain reforms in the civil service. To this 
end a Civil-Service Commission of three persons, 
not more than two belonging to one political party, 
is appointed by the President, with the consent of 
the Senate. The task of this commission is to aid 
the President in formulating rules and regulations 
for the government of the service. Applicants for 
certain positions are now required to pass a pre- 
liminary examination. Although the operations of 
this commission are somewhat limited, a decided 
step has been taken in the right direction. 

" Washington removed nine persons, one a defaulter; Adams 
ten, one a defaulter; Jefferson, thirty-nine ; Madison, five, three 
defaulters ; Monroe, nine ; Adams, two, both for cause. . . . Be- 
tween March 4, 1829, and March 22, 1830, four hundred and 
ninety-one postmasters, and two hundred and thirty-nine other 
officers w r ere removed, and as the new appointees changed all 
their clerks, deputies, etc., it was estimated that two thousand 
changes in the civil service took place." — Sumner, " Life of 
Andrew Jackson," pp. 145, 147. 

POWER OVER THE ARMY AND NAVY. 

Commander-in-Chief. — As it is the duty of the Presi- 
dent to execute the laws, to maintain domestic peace, 
and to repel invasion, some power must necessarily 
be placed at his disposal, which he can promptly 
and effectively use when necessity requires. He 
is accordingly placed in command of the army and 
navy. He is not, however, expected to take com- 
mand in person of the military forces in the field, 
but this power is exercised through the War De- 
partment. The President is also commander-in- 
chief of the militia of the several_States when called 
into the service of the United States. 



THE POWERS OF THE PRESIDENT. 179 

Relation of Congress to the Army and Navy. — Con- 
gress has power to raise and support armies, main- 
tain a navy, make rules for their government, and 
legislate regarding all matters that have for their 
object the efficiency of the service ; but it has noth- 
ing whatever to do with the disposition and move- 
ments of the land and naval forces. This the Presi- 
dent alone can do. It may decide that w r ar shall 
be waged, and determine what means shall be placed 
at the disposal of the President to wage war, but 
the President, as commander-in-chief, possesses the 
sole authority to decide how the w r ar shall be con- 
ducted. Only in an indirect w^ay, by refusing to 
vote supplies, can Congress control the conduct of 
a war. 

THE PARDONING POWER. 

Reprieves and Pardons. — After a person accused of 
a crime has been convicted, and sentence has been 
passed upon him, it sometimes happens that new r 
testimony is discovered, which either mitigates the 
offence or establishes the innocence of the accused. 
In a case of this kind, it is evident that to some one 
should be intrusted the power to postpone the exe- 
cution of the sentence, until what has come to light 
can be examined, and to remit the punishment, if 
the accused is found to be innocent. Then again, 
even when a person has committed a crime, there 
may be good reasons to justify the remission of the 
penalty, or to change the punishment into a less 
severe one. The power to grant reprieves and par- 
dons for offences against the United States is close- 
ly allied to the power of executing the laws, and, 



180 THE GOVERNMENT OF THE UNITED STATES. 

except in cases of impeachment, is conferred upon 
the President. It will be observed that an excep- 
tion is made in cases of impeachment. When pub- 
lic officers offend against the laws, abuse their pow- 
ers, or neglect their duties, the interests involved 
are so great that there should be no hinderance to 
their prompt removal from office. 

1. A reprieve is the suspension, for a certain time, of the ex- 
ecution of a sentence, especially the sentence of death; a par- 
don is the remission of a penalty. 

2. " This power of pardon will appear to be more essential, 
when we consider that under the most correct administration 
of the law men will sometimes fall a prey to the vindictive- 
ness of accusers, the inaccuracy of testimony, and the fallibil- 
ity of jurors." — Kent, " Commentaries on American Law," vol. 
i. p. 284. 

FOKEIGN RELATIONS. 

Treaties. — A treaty is an agreement between two 
or more nations. It may be an agreement of friend- 
ship or alliance, of commerce or navigation. In 
monarchies this power to make treaties is usually 
vested in the sovereign. In the United States it 
is confided to the President, with the restriction 
that all treaties must be submitted to the Senate, 
and to take effect must be ratified by two thirds 
of the senators present. The general welfare of 
the country is so largely affected by its relations 
with foreign countries that it was considered un- 
wise to intrust so important a power wholly to one 
man, or even to a mere majority of the Senate. 
The Senate is designated, rather than the House of 
Representatives, for the reason that it is a more 
stable body, and, being composed of men of greater 



THE POWERS OF THE PRESIDENT. 181 

experience in public affairs, is presumably better 
able to decide wisely with reference to our foreign 
interests. Treaties are negotiated by the President 
through the agency of resident or special ministers. 
The correspondence and negotiations are generally 
conducted secretly, and the terms of the treaty are 
discussed by the Senate in secret session. All 
treaties made under the authority of the United 
States are declared by the Constitution to be a part 
of the supreme law of the land. 

Secret sessions have never been popular with the people, who 
naturally claim the right to know what their servants, the law- 
makers, are doing. For the first five years all the sessions of 
the Senate were conducted with closed doors, but now the de- 
bates and proceedings are all open to the public, except when 
it is considering the terms of a treaty, or discussing the fitness 
of a nomination, or engaged in other executive business. 

Reception of Ambassadors and other Public Ministers. 
— As ambassadors and other public ministers are 
the immediate representatives of their respective 
governments, they are, as such, entitled to the con- 
sideration which the dignity and importance of the 
office merit. It has been the custom among foreign 
nations to confide to the executive department the 
reception of the ministers of other governments, 
and in keeping with this general custom, the Con- 
stitution has invested the President with this im- 
portant and somewhat delicate function. The min- 
ister of a foreign court first presents, in a formal 
manner, to the Secretary of State, his credentials, 
that is, the letters which show that he is the ac- 
credited representative of his government. This 
ceremony is performed at the Department of State. 



182 THE GOVERNMENT OF THE UNITED STATES. 

The Secretary of State then accompanies him to 
the White House, and presents him to the President. 
Brief speeches, expressive of the kindly sentiments 
of the two nations, are made both by the minister 
and the President. As the President is the repre- 
sentative of the people in all diplomatic negotia- 
tions, there is an evident propriety in his receiving 
the diplomatic representatives of foreign govern- 
ments. 

Rank of Diplomatic Agents. — There are at present 
four classes of diplomatic agents, ambassadors, en- 
voys extraordinary and ministers plenipotentiary, 
ministers resident, and charges d'affaires. An am- 
bassador is a diplomatic agent of the highest rank. 
He is accredited, that is, sent with credentials certi- 
fying his diplomatic character and rank, by one 
potentate to another, and represents the person of 
the sovereign by whom he is sent. His credentials 
he invariably presents in person to the sovereign, 
and on any fitting occasion he can claim a personal 
audience. He has precedence in rank and honor 
over all other public ministers, and on state occa- 
sions he ranks next to princes of the blood royal. 
Envoys extraordinary and ministers plenipotenti- 
ary are next in rank, then come ministers resident, 
and last charges d'affaires. Envoys and ministers 
represent only the state, not the person of the sov- 
ereign, but they are accredited to sovereigns. They 
may ask for a personal interview with the king, 
but only as a favor, not as a right, as in the case of 
an ambassador. Charges d'affaires are accredited 
to ministers of foreign affairs, and are only entitled 



THE POWERS OF THE PRESIDENT. 183 

to transact business with them. This country does 
not send ambassadors to any court, and consequent- 
ly American ministers in European courts are out- 
ranked by the ambassadors of second-rate powers. 
Likewise foreign countries do not send ambassadors 
to the United States. Although the titles applied 
to diplomatic agents differ, there is no material 
difference in their powers and duties. The rank 
has nothing to do with the transaction of affairs, 
but the custom of courts has attached different de- 
grees of dignity and distinction to these titles. 

Ambassadors were formerly surrounded with all the sj)lendor 
and ceremony of the monarchs they represented. They were 
sent to their destination in ships of war. Their progress 
through the country was attended with profuse display, and 
they were surrounded with a magnificent retinue of attend- 
ants. They were allowed to stand covered in the presence of 
royalty, and the public audience with the sovereign to whom 
they were sent was a formal and solemn affair. 

Immunities and Privileges of Diplomatic Agents. — 
The person of a diplomatic agent is considered sa- 
cred, and he enjoys peculiar and important privi- 
leges and immunities. He is exempted from the 
jurisdiction of the laws of the country in which he 
is sent to reside, and he is independent of any au- 
thority but that of the sovereignty he represents. 
He carries with him into another territory -almost as 
entire an exemption from its laws as if he were at 
home. 1 The house in which he lives, and over which 
the flag of his country floats, is regarded as being in 
a certain sense outside of the country where he dis- 

1 Woolsey, "International Law,' 1 p. 148. 



184 THE GOVERNMENT OF THE UNITED STATES. 

charges his functions, and as belonging to the coun- 
try whose agent he is. Like a ship at sea, it forms 
part of the territory represented by the flag which 
he may hoist over it. 1 Persons can be married there 
according to the laws of their own country, no mat- 
ter what the law of the land itself may be. The 
exemption from all local authority which the for- 
eign minister enjoys is likewise extended to his 
family, his secretaries, his goods, and his domestic 
servants. 

The Duties of Diplomatic Agents. — It is the duty of 
a diplomatic agent to keep his own government 
well informed of all that may concern its interests 
in foreign countries, protect and defend, if neces- 
sary, the persons and interests of his fellow-coun- 
trymen abroad, and maintain the most friendly 
relations with the government to which he is ac- 
credited. It has been jokingly said that " the first 
duty of an ambassador is to keep a good cook," as 
the exercise of liberal hospitality has much to do 
with the purposes of their mission. Through diplo- 
matic representatives negotiations are carried on, 
treaties are arranged, and injuries are adjusted. 
Sometimes commissioners are appointed to adjust 
differences between two powers, as in the dispute 
between the United States and Canada over the 
fisheries. The settlement of the so-called Alabama 
claims was referred to arbitrators from five friendly 
nations. It is greatly to be hoped that the day is 
not far distant when all differences between nations, 

1 Keeve, " Encyclopaedia Britannica," vol. i. p. 658. 



THE POWERS OF THE PRESIDENT. 185 

which diplomatic agencies fail to adjust, shall be 
settled by arbitration, and not by an appeal to arms 
and the horrors of war. 

Consuls and their Duties. — Consuls are commercial 
agents who reside at foreign ports, and whose duty 
it is to promote the commercial interests of their 
own nation, and care for and protect their country- 
men in their commercial rights. They provide for 
destitute sailors belonging to the country they rep- 
resent, protect those who are cruelly treated, and 
perform numerous other and important duties re- 
lating to the interests of merchants and seamen. 
Within their consulates they take care of the prop- 
erty left by deceased citizens, when no legal repre- 
sentative is at hand, and authenticate all marriages, 
births, and deaths of their countrymen. It is the 
practice of all commercial nations to have a consul 
at every port of importance where their citizens have 
established a trade. Consuls are not entitled to the 
privileges and immunities of diplomatic agents, but 
they are subject to the laws of the country where 
they reside, like all other members of the same na- 
tion. They have no special privileges beyond those 
afforded to private persons from the same country. 
They carry certificates of their appointment, as in 
the case of foreign ministers, and they must receive 
permission from the government where they reside 
before they can perform the duties pertaining to 
their office, within the limits prescribed. Occasion- 
ally consuls partake somewhat of the character of 
diplomatic agents, and in Mohammedan countries 
they have nearly the same rights. 



186 THE GOVERNMENT OF THE UNITED STATES. 

1. The consular office is sometimes associated with that of 
minister resident. At ports where our commerce is small, for- 
eigners are employed by the government in the capacity of 
consular agents. 

2. " As Christian states were reluctant to expose their sub- 
jects to the operation of outlandish law and judgments, they 
have secured extensively by treaty to their consuls, in Moham- 
medan and other non-Christian lands, the function of judging 
in civil and even in criminal cases, where their own countrymen 
are concerned.'" — Woolsey, "International Law," p. 168. 

RELATION OF THE PRESIDENT TO CONGRESS. 

Powers Previously Mentioned. — Mention has already- 
been made of the veto power of the President ; of 
his duty to give to Congress information of the 
state of the Union, and to recommend to their con- 
sideration such measures as he shall judge neces- 
sary and expedient ; and of the authority conferred 
upon him to convene both Houses, or either of them, 
on extraordinary occasions, and in case of disagree- 
ment between them with respect to the time of 
adjournment, to adjourn them to such time as he 
may think proper, 






CHAPTER XV. 

THE JUDICIAL DEPARTMENT. 

Relation of the National Judiciary to the Other De- 
partments. — The third department of government is 
the judicial. Its powers are coextensive with those 
of the other two, and it is equal in dignity and 
authority. The legislative department, within the 
limits prescribed by the Constitution, makes laws, 
the executive carries them into effect, the judicial 
passes judgment upon the constitutionality of the 
laws and applies them to individual cases. To illus- 
trate, the Constitution confers upon Congress the 
power to levy and collect duties. If there be any 
dispute regarding any duty levied, the executive 
power cannot compel its payment. It is the prov- 
ince of the judicial department alone to adjudicate 
between the government and the citizen, and to en- 
force the payment of whatever may be found due. 
If any acts passed by Congress are contrary to the 
manifest tenor of the Constitution, it is the duty of 
this department to declare them void. In the inter- 
pretation of the Constitution and the laws, the na- 
tional judiciary is supreme. 

A National Judiciary Necessary. — To allow the leg- 
islative department to be the sole judge of the 
constitutionality of its own acts would be unsafe. 
Legislative bodies, unless held in check, are liable 



188 THE GOVERNMENT OF THE UNITED STATES. 

to usurp power and to trample on the liberties of 
the people. To leave to the several States the inter- 
pretation and enforcement of laws passed by Con- 
gress would give rise to various misunderstandings. 
The federal law would be interpreted and applied 
one way in one State and another way in another, 
and there would be little or no uniformity of deci- 
sion. In order to protect public and private rights, 
and to secure a steady, uniform, and impartial ad- 
ministration of the laws, it is necessary that a 
national judiciary should be established, and that 
it should be entirely distinct from the legislative 
and executive departments. 

"There is no liberty, if the judiciary be not separated from 
the legislative and executive powers." — Montesquieu. 

The Federal Courts. — The judicial power of the 
United States is vested by the Constitution in one 
Supreme Court, and in such inferior courts as Con- 
gress may from time to time establish. The num- 
ber and jurisdiction of these courts will naturally 
vary as the public convenience and exigencies of 
the country may require. In the exercise of its 
constitutional powers, Congress has established cer- 
tain inferior courts, and defined the jurisdiction of 
each. These courts, together with the Supreme 
Court, constitute the federal judiciary. The federal 
courts are, a Supreme Court, Circuit Courts, Dis- 
trict Courts, and a Court of Claims. The Supreme 
Court at present consists of a Chief- Justice and eight 
associate justices. The United States are divided 
into nine judicial circuits, each circuit comprising 
several States. The Chief -Justice and associate jus- 



THE JUDICIAL DEPARTMENT. 189 

tices are allotted among the circuits, and for each 
circuit there is also appointed a circuit judge. The 
judicial circuits are divided into judicial districts, 
at least one District Court being established in each 
State. A district judge is appointed for each dis- 
trict. The Court of Claims is composed of a Chief- 
Justice and four associate judges. The sessions of 
the Supreme Court and the Court of Claims are 
held in Washington. 

Appointment of Judges. — The judges of the federal 
courts, it will be remembered, are appointed by the 
President, with the advice and consent of the Sen- 
ate. As the business of judicature requires the pos- 
session of a high degree of skill and knowledge, 
and as public and private interests are so materially 
affected by the decisions of these courts, it is cer- 
tainly a wise provision that the Senate should be 
associated with the President in the appointment of 
judges. Improper appointments are thus less likely 
to be made, and less opportunity is given for the 
exhibition of favoritism or the exercise of personal 
influence. Not many men have the soundness of 
judgment and knowledge of law which qualify them 
to exercise the important functions of judge. Even 
when there is the requisite knowledge, the requisite 
integrity may be wanting. In the appointment of 
federal judges, no qualifications are required by the 
Constitution, nor does it fix the number of judges 
of the Supreme Court. 

" Personal security and private property rest entirely upon 
the wisdom, the stability, and the integrity of the courts of 
justice." — Kent, " Commentaries on American Law," vol. i. 
p. 290. 






190 THE GOVERNMENT OF THE UNITED STATES. 



Term of Office and Compensation. — In order to secure 
a wholesome independence, and a strict impartial- 
ity in the administration of the laws, the Constitu- 
tion provides, 

1. That the judges, both of the Supreme and 

inferior courts, shall hold their offices 
during good behavior. 

2. That they shall, at stated times, receive for 

their services a compensation which shall 
not be diminished during their continu- 
ance in office. 1 
If judges were dependent upon the favor of the 
chief executive or the legislature, either for reap- 
pointment to office or for subsistence while in of- 
fice, there would be constant danger of their being 
influenced in their official action by the desire for 
reappointment, or by the fear that their compensa- 
tion might be lessened if their decisions were not 
acceptable to Congress. It is unhappily true that, 
in the general course of human nature, a power 
over a man's subsistence amounts to a power over 
his will. 2 To make the judges, therefore, mere de- 
pendants upon some appointing power, or upon the 
bounty and occasional grants of a legislative body, 
would be fatal to that independence of judgment 
which is essential to the preservation of the rights 
and liberties of the people. 

" Laws, however wholesome or necessary, are frequently the 
object of temporary aversion, and sometimes of popular resist- 
ance. It is requisite that the courts of justice should be able, 

1 " The Constitution," Article III. sec. 1. 

2 Hamilton, " The Federalist," p. 583. 



THE JUDICIAL DEPARTMENT. 191 

at all times, to present a determined countenance against all 
licentious acts, and to deal impartially and truly according to 
law, between suitors of every description, or whether the cause, 
the question, or the party be popular or unpopular. To give 
them the courage and firmness to do it, the judges ought to be 
confident of the security of their salaries and station." — Kent, 
" Commentaries on American Law," pp. 293, 294. 

Eemoval from Office. — It must not, however, be sup- 
posed that judges are not responsible for their offi- 
cial conduct. If at any time they are found guilty 
of any abuse of judicial authority, they may be re- 
moved from office by impeachment. Thus, while 
proper safeguards have been thrown around the 
judiciary to protect it in the independent and con- 
scientious discharge of its duties, the judges are not 
beyond the reach of the laws, but they are account- 
able for the abuse of their authority. 

A Comparison. — Doubtless it has been observed 
that while the compensation of the President can 
neither be increased nor decreased during his term 
of office, that of the judges cannot be diminished, 
but may be increased. This probably arose from 
the difference in the duration of their respective of- 
fices. As the President is elected for only four 
years, it can rarely happen that an adequate salary, 
fixed at the commencement of his term of office, 
will not continue to be such, to the end. But with, 
regard to the judges, who hold their offices for life, 
it may well happen, especially in the early stages 
of the government, that a salary which would be 
sufficient at their first appointment, would become 
too small in the progress of their service. 1 

1 Hamilton, " The Federalist," p. 584. 



CHAPTEE XVI. 

THE POWERS OF THE FEDERAL COURTS. 

Judicial Power of the United States. — The judicial 
power of the United States extends, 

1. To all cases, in law and equity, arising un- 

der the Constitution, laws, and treaties of 
the United States. 

2. To all cases affecting ambassadors, other 

public ministers, and consuls. 

3. To all cases of admiralty and maritime ju- 

risdiction. 

4. To controversies to which the United States 

shall be a party. 

5. To controversies between two or more 

States, between a State, when plaintiff, 
and citizens of another State, between 
citizens of different States, and between 
citizens of the same State claiming lands 
under grants of different States. 

6. To controversies between a State or its cit- 

izens and foreign states, citizens, or sub- 
jects. 
From the foregoing it will be seen that the juris- 
diction of the federal courts extends, (1) To all 
cases in which federal law is involved ; and (2) To 
all controversies in which, on account of the fact 



THE POWERS OF THE FEDERAL COURTS. 193 

that the parties are citizens of different States, 
State tribunals are not likely to act with impar- 
tiality. 

1. Civil law is u a rule of civil conduct prescribed by the su- 
preme power in a state, commanding what is right and pro- 
hibiting what is wrong." — Blackstone. u In the most general 
sense, we are accustomed to call that equity, which, in human 
transactions, is founded in natural justice, in honesty, and 
right,"— Story. 

2. Perhaps the most general description of a court of equity 
is that it has jurisdiction in cases of rights where a plain, ade- 
quate, and complete remedy cannot be had in the courts of 
law. It can adapt its decrees to all the variety of circum- 
stances which may arise, and adjust them to all the peculiar 
rights of all the parties in interest; whereas courts of common 
law are bound to a fixed and invariable form of judgment, al- 
together absolute, for the plaintiff or for the defendant. See 
Story, "Commentaries of Equity Jurisprudence," pp. 21, 24. 

CASES IX WHICH FEDERAL LAW IS INVOLVED. 

Cases under the Constitution, Laws, and Treaties. — 
That all cases arising under the Constitution, laws, 
and treaties of the United States should come within 
the jurisdiction of the federal courts scarcely admits 
of a doubt. How else could uniformity be secured 
in the interpretation and application of the laws, 
or efficiency be given to the powers of government, 
or treaties made obligatory on the whole nation. 
In all these cases the jurisdiction of the federal 
courts is final and conclusive. 

Appeals from the Judgments of State Courts. — Inas- 
much as the Constitution and the federal laws con- 
stitute a part of the fundamental law of each State, 
it must frequently happen that the State courts, 



194 THE GOVERNMENT OF THE UNITED STATES. 

" in the exercise of their ordinary and rightful ju- 
risdiction," will take cognizance of cases in which 
questions under these incidentally arise. To all 
such cases the judicial power of the federal govern- 
ment extends, and provision has been made for re- 
moving to the Supreme Court of the United States 
the final judgments, in these cases, of the highest 
court of a State. "Without such provision, frequent 
collisions between State and national authority 
would occur. 

Cases Affecting Ambassadors, other Public Ministers, 
and Consuls. — It would not be possible to maintain 
peace and friendship with other nations, unless the 
representatives of these governments were protect- 
ed in their privileges and rights. A disregard for, 
or a violation of,- the rights of public ministers is 
regarded as an insult to the sovereignty of the na- 
tion they represent, and is likely to be attended 
with serious consequences to the peace of the na- 
tion. Hence the necessity of referring all questions 
relating to the rights and privileges of ambassadors 
and other public ministers to the national judiciary 
for decision. Although consuls do not enjoy any 
such immunities as public ministers, cases affecting 
them are likewise referred to the same jurisdiction. 

Congress has enacted that if any one offers violence to the 
person of a public minister of any foreign prince or state, or is 
concerned in prosecuting or arresting any such minister, or 
any of his domestic servants, he shall be deemed a violator of 
the law of nations and a disturber of the public peace, and 
shall be imprisoned for not to exceed three years, and fined at 
the discretion of the court. See " Revised Statutes of the 
United States," sees. 4062-4064. 



THE TOWERS OF THE FEDERAL COURTS. 193 

Cases of Admiralty and Maritime Jurisdiction. — Ad- 
miralty jurisdiction includes acts and injuries done 
on the high seas, such as collisions and prizes taken 
in time of war. Under maritime jurisdiction come 
cases pertaining to commerce and navigation, such 
as suits to recover wages or money secured by a 
lien on the ship. The high seas are not the exclu- 
sive property of any one nation, but they belong 
to all nations in common, all having equal rights 
and jurisdiction. In the exercise of this common 
sovereignty on the ocean, questions affecting the 
rights and privileges of foreigners will frequently 
arise, and unless prompt justice is rendered when 
these rights are in question, the friendly relations 
of the United States with foreign nations might be 
jeopardized. Such cases naturally come within the 
jurisdiction of the federal courts, the States, as 
such, not being known in our intercourse with for- 
eign nations, and not being recognized as common 
sovereigns of the ocean. 1 Admiralty and maritime 
jurisdiction is not, however, confined to cases on 
the high seas, but it includes acts and injuries done 
on the great lakes and navigable rivers. This does 
not divest the States of ordinary jurisdiction over 
inland waters. Cases of admiralty and maritime 
jurisdiction embrace transactions of a civil, not of 
a criminal nature. 

"Courts of admiralty have been found necessary in all com- 
mercial countries, not only for the safety and convenience of 
commerce, and the speedy decision of controversies, where de- 

1 Story, " Commentaries on the Constitution," vol. ii. p. 4o7. 



196 THE GOVERNMENT OF THE UNITED STATES. 

lay would often be ruin, but also to administer the laws of na- 
tions in a season of war, and to determine the validity of capt- 
ures and questions of prize or no prize in a judicial proceed- 
ing." — The Propeller Genesee Chief, 12 Howard, p. 454. 

Controversies in which the United States is a Party. — 
Controversies in which the United States is a party 
can only, with propriety, be referred to the federal 
courts. To refer such cases to the State courts 
would be inconsistent with the idea of national sov- 
ereignty, and would necessarily tend to lessen na- 
tional authority. The rights of the United States 
would be entirely at the mercy of the States, and a 
speedy dissolution of the Union would be inevitable. 

"Any government that must depend upon others for the in- 
terpretation, construction, and enforcement of its own laws is 
at all times at the mercy of those on whom it thus depends, 
and will neither be respected at home nor trusted abroad, be- 
cause it can neither enforce respect nor perform obligations." 
— Cooley, "Principles of Constitutional Law," p. 110. 

CASES IN WHICH STATE COURTS ARE NOT LIKELY TO 
ACT WITH IMPARTIALITY. 

Cases Enumerated. — It is reasonable to suppose 
that the national courts will be more likely than 
State tribunals to decide impartially, or with less 
bias, controversies, 

1. Between two or more States, between a 

State and citizens of another State, be- 
tween citizens of different States, and be- 
tween citizens of the same State claiming 
lands under grants of different States ; 

2. Between a State or its citizens and foreign 

states, citizens, or subjects. 



THE TOWERS OF THE FEDERAL COURTS. 197 

Differences will sometimes arise between States 
as between individuals, and unless there is an impar- 
tial court which has authority to decide finally all 
differences, the harmony of the States will be dis- 
turbed, and serious dissensions, and even war, might 
follow. It is generally conceded that no man ought 
to be a judge in his own cause, or in any cause in 
respect to which he has any interest, 1 and what is 
true of an individual is equally true of a State. 
The rights of citizens and States in the above men- 
tioned controversies are more likely to be respected 
and protected by the federal courts than by local 
State courts. It can hardly be supposed that State 
tribunals will always be impartial in controversies 
affecting their own interests and those of their own 
citizens. The same is true with reference to con- 
troversies between a State or its citizens, and for- 
eign states, citizens, or subjects. 

Suits against States. — Owing to the general dis- 
satisfaction occasioned by a decision of the Supreme 
Court that a State was suable by citizens of an- 
other State, an amendment to the Constitution was 
proposed by Congress and adopted by the States, 
which withdrew from federal jurisdiction suits 
against a State by citizens of another State, or by 
citizens or subjects of any foreign state. 2 A State 
can be sued by another State or bjr foreign states 
or powers, but not by citizens or subjects. jSTumer- 
ous suits had been brought against States by pri- 

1 Hamilton, "The Federalist," p. 501. 

2 The Constitution, Amendments, Article XI. 



198 THE GOVERNMENT OF THE UNITED STATES. 

vate persons to compel the payment of claims. In 
consequence of this amendment all suits thus com- 
menced were dismissed. States at different times 
have taken advantage of this provision, and neg- 
lected to meet their obligations. 

JURISDICTION OF THE SEVERAL COURTS. 

Jurisdiction Defined. — A matter is said to be within 
the jurisdiction of a court when it is within the 
limits of its authority, and it has the power to hear 
and determine the case. A court is said to have 
original jurisdiction when it has authority to take 
the first steps in a suit, in other words, when a suit 
may commence there ; and to have appellate juris- 
diction when it has the power to review the decision 
or judgment of some other court, the court from 
whose decision an appeal is made being considered 
inferior to the court having appellate jurisdiction. 

The Supreme Court. — The Supreme Court is the 
highest judicial court in the United States. Its 
decisions are final. From them there is no appeal. 
It has, 

1. Original jurisdiction in all cases affecting 

ambassadors, other public ministers, and 
consuls, and in those in which a State is a 
party ; 

2. Appellate jurisdiction in all the other cases 

before mentioned, both as to law and fact, 
with such exceptions and under such reg- 
ulations as Congress shall make. 1 

1 The Constitution, Article III. sec. 2, cl. 2. 






THE POWERS OF THE FEDERAL COURTS. 199 

Cases affecting foreign ministers and consuls, and 
in which a State is a party, involve questions of 
such importance that they are properly referred to 
the highest judicial tribunal. These are the only 
cases in which the Supreme Court has original ju- 
risdiction. The business of the court is mainly to 
review the decisions of inferior courts. It is this 
that gives to it most of its dignity and importance. 

1. The whole appellate jurisdiction of the Supreme Court is 
dependent on the regulations of Congress. 

2. " If several courts, co-ordinate to and independent of 
each other, subsist together in the country, it seems necessary 
that the appeals from all of them should meet and terminate 
in the same judicature, in order that one supreme tribunal, by 
whose final sentence all others are bound and concluded, may 
superintend and preside over the rest. This constitution is 
necessary for two purposes, to preserve a uniformity in the 
decision of inferior courts, and to maintain to each the proper 
limits of its jurisdiction." — Paley. 

Circuit Courts. — The Circuit Courts of the United 
States have, 

1. Original jurisdiction in grave offences against 

the law^s of the United States ; 

2. Appellate jurisdiction over the decisions of 

District Courts. 
Suits between citizens of different States and be- 
tween aliens and citizens, w r hen the matter in dis- 
pute exceeds the sum or value of five hundred dol- 
lars; suits under revenue, copyright, and patent 
laws, and w^here grants of different States come in 
question ; and all crimes and offences against the 
hnvs of the United States, punishable by death or 
heavy penalties, are tried in these courts. 



200 THE GOVERNMENT OF THE UNITED STATES. 

District Courts. — District Courts have jurisdiction 
of crimes and offences committed within their re- 
spective districts against the laws of the United 
States that are not punishable by severe penalties. 
Minor offences on the high seas are tried in these 
courts. Their jurisdiction is civil as well as crimi- 
nal. Although Congress has made provision for 
appeals from the decision of inferior courts, many 
cases are finally determined in the District Courts. 
This is also true of the Circuit Court and the Court 
of Claims. 

The Court of Claims. — It is a recognized principle 
in the law of nations that a sovereign state cannot 
be sued by an individual, except with its own con- 
sent. This attribute of sovereignty is not only in- 
herent in the national government, but it belongs 
also to every State in the Union. It w r ould there- 
fore be impossible for any person to bring a suit 
against the United States, unless the national gov- 
ernment should create a court in which claims 
against itself could be brought. Such a court has 
been established by act of Congress, called the Court 
of Claims. It has jurisdiction of all claims founded 
upon any law of Congress, or upon any regulation 
of an executive department, or upon any contract 
with the government of the United States, and also 
of all claims referred to it for decision by either 
House of Congress. 1 Prior to the establishment 
of this court, the only means by which persons 
could obtain a settlement of any claims against the 

1 "Revised Statutes of the United States," sec. 1059. 



THE POWERS OF THE FEDERAL COURTS. 201 

government which the executive departments had 
refused to allow, was by petitioning Congress. 

11 The inconvenience of subjecting the government to per- 
petual suits, as a matter of right, at the will of any citizen, for 
any real or supposed claim or grievance, was deemed far greater 
than any positive injury that could be sustained by any citi- 
zen by the delay or refusal of justice. Indeed, it was presumed 
that it never would be the interest or inclination of a wise 
government to withhold justice from any citizen. v — Story, 
" Commentaries on the Constitution," vol. ii. p. 459. 

Other Courts. — In addition to the courts already 
mentioned, other courts have been created and pro- 
vided for by Congress. These are territorial courts, 
courts-martial, and military courts. The Constitu- 
tion provides also for courts of impeachment. Ter- 
ritorial courts have about the same powers in the 
territories that both State and federal courts have 
w T ithin the States. Courts-martial have jurisdiction 
of crimes and offences committed in the military 
and naval service. Military courts are organized 
in times of Avar, within the field of military opera- 
tions, w T hen martial law has been declared, and the 
ordinary courts are unable to perform their regu- 
lar functions. Courts of impeachment try political 
offences. 

" There is a great distinction, though often lost sight of, be- 
tween military and martial law, the former affecting the troops 
or forces only, to which its terms expressly apply, equally in 
peace and war, by previously defined regulations; the latter 
extending to all the inhabitants of the district where it is in 
force, being wholly arbitrary, and emanating entirely from a 
state of intestine commotion or actual war." — Warren. 

The Trial of Crimes, — The Constitution provides 
9* 



202 THE GOVERNMENT OF THE UNITED STATES. 

that the trial of all crimes, except in cases of im- 
peachment, shall be by jury, and that the trial shall 
be held in the State where the crimes have been 
committed ; but when not committed within any 
State, that the trial shall be at such place or places 
as Congress may by law have directed. 1 This was 
subsequently amplified by the sixth amendment, 
and will be more conveniently treated in a subse- 
quent chapter. 

1 The Constitution, Article III. sec. 2, cl. 3. 






CHAPTEK XVII. 

CHECKS AND BALANCES OF THE FEDERAL SYSTEM. 

Checks Required. — One of the most eminent of 
American statesmen has said that the aim of every 
political organization ought to be, first, to obtain 
for rulers men who possess most wisdom to discern 
and most virtue to pursue the common good of so- 
ciety ; and, secondly, to take the most effective pre- 
cautions for keeping them right, while they con- 
tinue to hold their public trust. 1 However pure 
and patriotic rulers may be, there ought to be checks 
so contrived as to resist the encroachments of au- 
thority, which are to be apprehended under any 
form of government. 2 If unerring wisdom and 
perfect virtue could be possessed by any one indi- 
vidual, a simple despotism would be the best form 
of government. The most effective check that has 
been devised is the division of the powers of gov- 
ernment into legislative, executive, and judicial, and 
their assignment to different classes of officials. 

Enumeration of Checks and Balances. — The govern- 
ment of the United States is a somewhat compli- 
cated system of checks and balances, carefully and 
skilfully arranged. These have been enumerated 
as follows : 

1 Hamilton, « The Federalist," p. 434. 

9 Poineroy, " Constitutional Law," p. 112. 



204 THE GOVERNMENT OF THE UNITED STATES. 

1. The States are balanced against the national 

government. 

2. The House of Eepresentatives is balanced 

against the Senate, the Senate against the 
House. 

3. The executive authority is in some degree 

balanced against the legislative. 

4. The judicial power is balanced against the 

House, the Senate, the executive power, 
and the State governments. 

5. The Senate is balanced against the Presi- 

dent in all appointments to office, and in 
all treaties. 

6. The people hold in their hands the balance 

against their own representatives, by pe- 
riodical elections. 

7. The legislatures of the several States are 

balanced against the Senate by sextennial 
elections. 

8. The electors are balanced against the peo- 

ple in the choice of the President. 1 

Washington wrote of the Constitution, " It is provided with 
more checks and barriers against the introduction of tyranny 
than any government hitherto instituted among men." 

The States and the Nation. — The jurisdiction of the 
national government is limited to a few objects that 
concern the general welfare of all the States. The 
State governments have control of all that relates 
to the ordinary business and every-day concerns of 
life. It was expected that the powers reserved to 

1 Letter of John Adams to John Taylor, Works, vol. vi. p. 467. 



CHECKS AND BALANCES OF FEDERAL SYSTEM. 205 

the States would serve as a check upon the increase 
of federal authority. Although the Constitution 
imposes effectual restraints upon the powers of the 
States, and makes the federal government the final 
judge of its own authority, it is within the power 
of the States, if the national government unwar- 
rantably extends its jurisdiction, to limit, by consti- 
tutional amendments, its power, and even to change 
the structure of the government. Likewise the 
States may guard against any unconstitutional mis- 
use of the law-making power, by choosing as sena- 
tors and representatives persons who in making 
laws will avoid any encroachments upon the re- 
served powers of the States. 

The House of Representatives and the Senate. — It will 
be remembered that a bill originating in one House 
must receive the approval of the other before it can 
become law, the two Houses acting as a check upon 
each other. Each branch is framed on an entirely 
different plan. Each represents different interests, 
the mode of election of each is different, and so like- 
wise the term of office. If the members of both 
Houses were chosen for an equal period of time 
and by the same electors, but little advantage 
would be derived from a division into two Houses. 
It is certainly a wise provision that every measure 
must be discussed and approved by two bodies of 
men, combined upon a different basis, and that the 
interests of a majority of the States, as represented 
in the Senate, are balanced against the legislative 
power of a majority of the whole people, as repre- 
sented in the House of Kepresentatives. 



206 THE GOVERNMENT OF THE UNITED STATES. 

Executive Authority and Congress. — Keference has 
already been made to the relation of the President 
to legislation, and to the natural tendency of the 
legislative department to encroach upon the au- 
thority of the other departments of government, 
and upon the rights of the people at large. The 
veto power was conferred upon the President as a 
means of defence against all depredations of the 
law-making power, as well as to guard against 
hasty and inconsiderate legislation. ISTo measure 
that he deems inexpedient can become law without 
his assent, unless it is passed over his veto by a 
two thirds majority of each House. The President 
may likewise refuse to execute laws which he 
deems unconstitutional, but in so doing he renders 
himself liable to impeachment. The command of 
the revenue by Congress, and the power of Con- 
gress to prescribe rules for the executive depart- 
ment, are checks against executive authority. Much 
of executive authority comes from statute, not from 
the Constitution, and what is thus given may at 
any time be taken away. This is also true of the 
courts. 1 

" It is, without doubt, absolutely necessary, for securing the 
constitution of a state, to restrain executive power; but it is 
more necessary to restrain the legislative. What the former 
can only do by successive steps (I mean subvert the laws), and 
through a longer or a shorter train of enterprises, the latter 
can do in a moment. As its bare will can give being to laws, 
so its bare will can also annihilate them. . . . The former may be 
confined, and even is the more easily so, when undivided; the 
legislative, on the contrary, in order to its being restrained, 

1 Cooley, " Constitutional Law," p. 158. 



CHECKS AND BALANCES OF FEDERAL SYSTEM. 207 

should absolutely be divided." — De Lolme, "The Constitution 
of England," pp. 150,157. 

The Judicial Power. — If the judicial department, in 
applying the law in any controversy, finds that any 
legislative enactment is contrary to the manifest 
tenor of the Constitution, it is its duty to declare 
it void. All orders, commands, or warrants of the 
executive department, as well as all enactments of 
Congress, must be within the limits prescribed by 
the Constitution. Although the federal judiciary 
cannot hold the President or members of Congress 
responsible for exceeding their constitutional au- 
thority, it may punish the agents of their unlawful 
acts. It is no protection to them that they were 
acting under the direction of their superiors. The 
judicial power is therefore a very effective check 
upon any usurpation of power by the other depart- 
ments of government. It is likewise an important 
check upon any encroachments of the State govern- 
ments on the powers of the federal government, or 
any violation by the States of the rights conferred 
by the Constitution on its citizens. On the other 
hand, as most of the jurisdiction of the courts is 
under the control of Congress, and may be modi- 
fied or taken away, as seems most expedient, the 
legislative department is a check upon judicial 
action. Also the chief executive may refuse to en- 
force any judgment which he believes to be in 
excess of the jurisdiction of the court, but always 
at the peril of impeachment. 

"As every officer remains answerable for what he officially 
does, a citizen, believing that the law he enforces is incom- 



208 THE GOVERNMENT OF THE UNITED STATES. 

patible with a superior law, the Constitution, simply sues the 
officer before the proper court as having unlawfully aggrieved 
him in the particular case. . . . The court does not decide 
directly upon the doings of the legislature. It simply decides, 
for the case in hand, whether there actually are conflicting 
laws, and, if so, which is the higher law that demands obedi- 
ence when both may not be obeyed at the same time." — Lieber, 
" Civil Liberty and Self-Government," pp. 163, 164. 

The Senate and the President. — The treaty-making 
power and the power to make appointments are 
vested in the President, but the consent of the 
Senate is required to give effect to either. Unwise 
treaties, and an improper use of executive influence 
and patronage, are thus guarded against. When a 
treaty involves the payment of money by the 
United States, the assent of the House of Repre- 
sentatives is required, as no appropriations can be 
made without the concurrence of both Houses. 
This constitutes an additional restraint on the 
treaty-making power. 

The People and their Representatives. — One of the 
greatest securities of a free government is the re- 
sponsibility of representatives to the people through 
periodical elections. At stated times they are com- 
pelled to appeal to public approbation, and if they 
usurp their powers, a remedy is obtained by the 
people electing more worthy representatives to 
annul the acts of their predecessors. Frequent 
elections and short terms of office are a means of 
holding government officials responsible for neglect 
of duty or abuse of authority. 

" Where all power is derived from the people, and public 
functionaries at short intervals deposit it at the feet of the 



CHECKS AND BALANCES OF FEDERAL SYSTEM. 209 

people, to be resumed again only at their own will, individual 
fears may be alarmed by the monsters of imagination, but 
individual liberty can be in little danger." — Johnson, Ander- 
v. Dunn. 6 Whcaton, p. 226. 

The Senate and the State Legislature. — As senators 
are elected by the State legislatures for a period 
of six years, they are responsible to the legislatures 
for their official acts, in the same way that mem- 
bers of the House of Representatives are respon- 
sible to their constituents. As there are stated 
times for the election of senators, the remedy for 
any betrayal of public trust is within the power of 
the State legislature. 

The Electors and the People. — Although the election 
of a President and Yice-President by a college of 
electors was designed to guard against injudicious 
selections by the people at large for these impor- 
tant offices, the plan has fallen into disfavor, and 
now the electors simply register the will of the 
political parties they represent, by casting their 
votes for candidates previously nominated by their 
party conventions. It was the original design of 
the framers of the Constitution that the electors 
should be left free to exercise their best judgment 
as to the proper persons to be selected, on the 
ground that selections would be more judiciously 
made by a chosen body of men appointed for that 
special purpose than by the whole people. Only 
for the first three presidential elections was the 
plan, as originally intended, carried out. As a 
check it has proved to be of no value. 

" A glimpse into the workshop of the framers of the Consti- 
tution shows how much they depended on things destined to 



210 THE GOVERNMENT OF THE UNITED STATES. 

be transient. Impeachment is now a rusted blunderbuss. The 
plan of presidential electors, hailed as a means of securing 
independence, both of legislative cabal and the popularis aura 
[popular favor], has proved the cumbrous fifth wheel to a 
coach. . . . Notwithstanding the constitutional testimony 
against titles of nobility, ' His Excellency of the White House 
demands audience of Her Majesty on her jubilee, and is the 
most powerful person of the two." — Conway, Scrifoier's Mag- 
azine, September, 1887. 

Impeachment of Public Officers. — The Constitution 
has provided that the President, Vice-President, 
and all civil officers of the United States shall be 
removed from office on impeachment for, and con- 
viction of, treason, bribery, or other high crimes and 
misdemeanors. 1 Any servant of the state, whether 
executive or judicial, from the highest to the lowest, 
may at any time be called to account for official 
misconduct. This check Congress may interpose 
to the abuse of executive and judicial authority. 
Members of Congress are not civil officers within 
the meaning of this provision, and are therefore 
not subject to impeachment, but they are liable to 
expulsion. Military and naval officers are subject 
to trial before military courts according to the rules 
and usages of war. 

1. " Power and strict responsibility for its use are the essential 
constituents of good government.'" — Wilson, " Congressional 
Government, p. 284. 

2. " Nothing is more important to the stability of the state 
than that facility should be given by its constitution for the 
accusation of those who are supposed to have committed any 
public wrong." — Machiavelli. 

1 The Constitution, Article II. sec. 4. 



CHECKS AND BALANCES OF FEDERAL SYSTEM. 211 

Mode and Effect of Impeachment. — The House of 
Representatives has the sole power of impeach- 
ment, the Senate the sole power to try all impeach- 
ments. The former acts as accuser, and appoints a 
committee of managers to conduct the prosecution ; 
the latter, under oath, determines the guilt or inno- 
cence of the person accused. The Senate judges, 
the House accuses. In order to secure a convic- 
tion, a majority of two thirds of the Senators 
present is required. This is to prevent a combina- 
tion of a mere majority to remove and disgrace a 
public officer who may be obnoxious to the party 
in power. In case of conviction, punishment is 
limited to removal from office, and disqualification 
to hold and enjoy any office of honor, trust, or 
profit under the United States. 1 If, however, the 
offence for which a public officer is impeached is 
punishable by law, the offender may be afterwards 
tried by a court of law, and punishment be inflicted 
as in the case of any private citizen. Impeach- 
able offences, as a general rule, are political offences ; 
as, for example, betrayals of public interests, abuses 
of trust, official misconduct, neglect of duty, " which 
are dangerous and criminal because of the immense 
interests involved." When the President of the 
United States is impeached, the Chief-Justice pre- 
sides. It would manifestly be improper for the 
Vice-President to preside, as his interests would 
be promoted by the conviction and removal of the 
President. Although the chief executive has power 

1 The Constitution, Article I. sec. 3, cl. 7. 



212 THE GOVERNMENT OF THE UNITED STATES. 

to pardon offences against the United States, the 
pardoning power does not extend to cases of im- 
peachment. 

In England persons have been impeached for giving bad 
counsel to the king, and even for giving him medicine without 
the advice of physicians. 



CHAPTEE XVIII. 

RIGHTS AND PRIVILEGES. 

Additional Guarantees. — When the Constitution 
was submitted to the States for their adoption, 
grave objections were taken to it on account of the 
omission of a bill of rights, that is, a formal asser- 
tion of the fundamental rights of the people. This, 
it was claimed, was " a fatal defect, and sufficient 
of itself to bring on the ruin of the republic." On 
the other hand, it was maintained that as the gov- 
ernment of the* United States could only exercise 
such powers as were conferred upon it, and as all 
other powers, not positively granted to the United 
States by the Constitution, were reserved to the 
States and to the people, it was unnecessary to 
enumerate any of the reserved rights of the people, 
or to say what the government should not have a 
right to do. It was, however, feared that the na- 
tional authority, in the exercise of powers which 
were necessarily given in general terms, might con- 
strue such powers to extend to certain cases that 
the States did not intend to fall within them. At 
the time of adopting the Constitution, the conven- 
tions of a number of States expressed a desire that 
further declaratory and restrictive clauses should be 
added, in order to prevent misconstruction or abuse 
of the powers conferred upon the government. Ac- 



214 THE GOVERNMENT OF THE UNITED STATES. 

cordingly twelve amendments were proposed at the 
first session of the first Congress, ten of which were 
ratified by the requisite number of States. These 
articles declared, 

1. That certain enumerated rights of the peo- 

ple should not be taken away or abridged 
(Articles I.-YIIL) ; 

2. That the enumeration in the Constitution of 

certain rights should not be construed to 
deny or disparage others retained by the 
people (Article IX.) ; 

3. That the powers not delegated to the United 

States by the Constitution, nor prohibited 
by it to the States, were reserved to the 
States respectively, or to the people (Ar- 
ticle X.). 
It was claimed by some that to enumerate a cer- 
tain few of the rights of the people might be con- 
strued to deny other rights that were not enu- 
merated. The ninth amendment was designed to 
meet this objection. 

A Bill of Rights. — The first eight amendments are 
often designated the American Bill of Eights. The 
phrase is borrowed from that memorable enactment 
known in English history as the Bill of Bights, the es- 
sential principles of which are embodied in the Ameri- 
can Bill of Rights. These eight amendments guaran- 
tee to individuals the following fundamental rights : 

1. Religious liberty ; 

2. Freedom of speech and of the press ; 

3. The right to assemble, and to petition the 

government ; 






RIGHTS AND PRIVILEGES. 215 

4. The right to keep and to bear arms ; 

5. Security of dwelling, and of person, papers, 

and effects ; 

6. The right of private property ; 

7. Trial by jury in civil cases ; 

8. The protection of certain established forms 

of law, when accused of crime. 
These amendments are limitations on federal au- 
thority alone, and were not intended as restrictions 
upon the powers of States. The national govern- 
ment is forbidden to deprive any citizen of the 
United States of any of the privileges and immuni- 
ties contained in the Bill of Eights. The States 
are free to regulate such matters within their re- 
spective jurisdiction, and in respect to their own in- 
habitants, as seems best to themselves, providing no 
State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of 
the United States ; or deprive any person of life, 
liberty, or property, without clue process of law; 
or deny to any person within its jurisdiction the 
equal protection of the laws. 1 

Although the federal Constitution does not impose limitations 
on the action of the States in these matters, the constitutions of 
the States, without exception, contain substantially the same 
guarantees as those of the Constitution of the United States. 

Religious Liberty. — Governments have repeatedly 
insisted upon certain forms of religious belief as a 
qualification for holding office, and have cruelly op- 
pressed and persecuted persons for attempting to 
worship God in the manner which their belief re- 

1 The Constitution, Amendments, Article XIV. sec. 1. 



216 THE GOVERNMENT OF THE UNITED STATES. 

quired. A particular church has been declared to 
be the church of the state, and special favors and 
advantages have been conferred upon it to the ex- 
clusion of other churches. The first amendment 
forbids Congress to enact any law respecting an es- 
tablishment of religion or prohibiting the free exer- 
cise thereof. This prohibition does not interfere 
with the right and duty of the government to foster 
and encourage piety, religion, and morality, since 
these are intimately connected with the happiness 
of a people, and are indispensable to the well-being 
of the state. The government very properly rec- 
ognizes its dependence on a superintending Prov- 
idence, by designating days of thanksgiving and of 
fasting, by opening its legislative sessions by the 
reading of the Scriptures and by prayer, by appoint- 
ing chaplains for the army and navy, and in various 
other ways. But it is not within the power of Con- 
gress to make any church the state church, or any 
religion a state religion, or to favor one religion or 
church more than any other. The greatest freedom 
in religious beliefs is guaranteed, and each individual 
is at liberty to worship God according to the dic- 
tates of his own conscience. Liberty of worship is 
one of the distinguishing features of American lib- 
erty. The Constitution furthermore declares that no 
religious test shall ever be required as a qualification 
to any office or public trust under the Unitecl States. 1 

1. As many of the original settiers in this country were 
obliged to leave their native land on account of their religious 

1 The Constitution, Article VI. cl. 3. 






RIGHTS AND PRIVILEGES. 217 

beliefs, care was taken to prohibit the United States from in 
an}' manner interfering with the religious convictions of any of 
its citizens. 

2. In a few States persons who deny the existence of the 
Supreme Being are disqualified from holding any office. This 
is true in North Carolina, South Carolina, Mississippi, and Ten- 
nessee. Until 1858 Jews were practically excluded from Par- 
liament by reason of each member being required to take a cer- 
tain oath "upon the faith of a Christian." This, of course, a 
Jew could not do. 

Freedom of Speech and the Press. — Freedom of 
speech and liberty of the press are necessary securi- 
ties against corrupt and tyrannical governments. 
It is essential to the very existence of a free state 
that the people should at all times have the right to 
freely express and propagate their opinions. By 
freedom of speech or of the press is not meant the 
right to injure the standing, reputation, or business 
of an individual, or to publish what is blasphemous 
or injurious to public morals, or to advocate princi- 
ples that have for their object the overthrow of the 
established order of government. But every citizen 
has the right to discuss fearlessly public measures, 
criticise the conduct of the government, bring to the 
bar of public opinion the acts of public officers, and 
in fact utter or publish whatever he pleases, pro- 
vided it is " with good motives and for justifiable 
ends." The laws of all the States furnish a pro- 
tection against slander and libel. Slander is the 
verbal attack on private character; libel is com- 
mitted through the agency of the press, and the 
assault is more deliberate and formal and injurious. 1 

' Poineroy, "Introduction to Municipal Law," p. 641. 
10 



218 THE GOVERNMENT OF THE UNITED STATES. 



1. "The liberty of the press is the palladium of all the civil, 
political, and religious rights of an Englishman." — Junius. 

2. " The freedom of the press is not limited to any particular 
form or method of publication, but it extends to all modes of 
putting facts, views, and opinions before the public. Books, 
pamphlets, circulars, etc., are, therefore, as much within it as 
the periodical issues." — Cooley, "Principles of Constitutional 
Law," p. 282. 

Liberty of the Press of Recent Origin. — Liberty of 
the press, in the same sense in which it is under- 
stood in this country and in England, is of very 
recent origin. Governments have considered the 
press to be an instrument of mischief, and have re- 
sorted to various devices to restrain it. In England 
censors were appointed to examine whatever was 
designed for publication, and without their approval 
no book or paper could be published. The number 
of printers and printing-presses was limited by law, 
books obnoxious to the government were publicly 
burned, and cruel punishments were inflicted on au- 
thors and publishers of prohibited books. To speak 
ill of the government was considered an offence 
worthy of the severest punishments. Till within a 
very short time, even current news of the day could 
not be published, if the government considered it 
for its interest that it should be suppressed. 

1. After the Restoration," printing was confined to London, 
York, and the Universities. . . . Authors and printers of ob- 
noxious books were hung, quartered, and mutilated, exposed in 
the pillory and flogged, or fined and imprisoned, according to 
the temper of their judges: their productions were burned by 
the common hangman. Freedom of opinion was under inter- 
dict: even news could not be published without license. " — 
May, " Constitutional History of England, 1 ' vol. ii. p. 105. 

2. In 1G71 Governor Berkeley, in his report upon the con- 



RIGHTS AND PRIVILEGES. 219 

dition of the colony of Virginia, among other things said, "I 
thank God there are no free schools nor printing, and I hope we 
shall not have, these hundred years ; for learning has brought 
disobedience and heresy and sects into the world, and print- 
ing has divulged them, and libels against the best government. 
God keep us from both." 

The Right of Assembly. — The right of the people 
peaceably to assemble has never, in the United 
States, been called in question. Although this right 
includes all association for religious, social, scientific, 
industrial, commercial, or for any other legitimate 
purpose, it has more particularly in view the assem- 
bly of persons for political purposes. The frequent 
coming together of the people to take public mat- 
ters into consideration, and to formulate the pre- 
vailing opinion on public questions, produces most 
beneficial effects on legislation, and helps to keep 
alive the spirit of self-government. Only when 
such assemblies contemplate public disorder, and 
thus endanger the safety of the state, do they be- 
come liable to suppression. 

The Right of Petition. — The right of petition is 
naturally associated with the right of assembly. It 
has been maintained that in a republican form of 
government like our own, it was unnecessary to 
provide in the Constitution that Congress should 
make no law respecting the right of the people to 
petition the government for a redress of grievances ; 
that the great right of petitioning would never be 
denied, and that its special acknowledgment " was 
of essential value only in a monarchy, against the 
encroachments of the crown." Although this right 
is necessarily associated with the structure and in- 



220 THE GOVERNMENT OF THE UNITED STATES. 

stitutions of a free state, and is one of the most 
sacred and unquestionable rights of free citizens, 
nevertheless experience has demonstrated the wis- 
dom of this provision. For many years the most 
heated discussions arose in Congress over this right. 
The presentation of petitions, by John Quincy Ad- 
ams and others, bearing directly or indirectly upon 
slavery, was bitterly opposed by a majority of the 
members. 

The right of petition is " a sacred right, which in difficult 
V times shows itself in its full magnitude, frequently serves as a 

safety-valve, if judiciously treated by the recipients, and may 
give to the representatives or other bodies the most valuable 
information. It may right many a wrong, and the privation 
of it would at once be felt by every freeman as a degradation. 
The right of petitioning is indeed a necessary consequence of 
the right of free speech and deliberation, a simple, primitive, 
and natural right. As a privilege it is not even denied the 
creature in addressing the Deity." — Lieber, " Civil Liberty and 
Self-Government," p. 121. 

The Present System of Petitioning of Modern Origin. 
— The right of petition has existed from the earliest 
times, but for many centuries it was restricted to 
the redress of personal and local grievances. It 
was not till the latter part of the eighteenth cen- 
tury (1779) that the modern right of petition, by 
which public matters and matters of general policy 
were pressed upon the attention of Parliament, had 
its origin. The free expression of opinion on pub- 
lic questions was at first but little tolerated by that 
assembly, and for long periods it was discounte- 
nanced and even punished. It is only within a com- 
paratively few years that a wise and tolerant spirit 
has recognized liberty of opinion, and the right of 






RIGHTS AND PRIVILEGES. 221 

•x 

the people to express their views in the form of 
petitions or otherwise on all questions of general 
legislation. 1 

Advantages and Abuses of the System. — Of late 
years the manner of petitioning has been so sys- 
tematized as to be of immeasurable service in the 
promotion of great public interests. In this way 
great influence is brought to bear upon a legislative 
body and public attention is aroused. It is a very 
efficient mode of subjecting a legislative body to the 
direct control of public opinion, and an admirable 
method of " countenancing those who desire to act 
and to be supported." Mainly by means of peti- 
tion that agitation was commenced which resulted 
in the abolition of slavery in the British colonies. 
The right of petition has also its abuses. In the un- 
scrupulous zeal of agents, signatures are frequently 
forged and multiplied, and various frauds are com- 
mitted. Then again many persons, rather than 
refuse their signatures, inconsiderately sign their 
names to petitions, the object of which they are not 
in full sympathy with, and as a natural result peti- 
tions do not always carry with them the weight 
they otherwise would. 

Lord Clarendon states that in 1640, "when a multitude of 
bands were procured, the petition itself was cut off, and a new 
one framed suitable to the design in hand, and annexed to the 
long list of names, which were subscribed to the former. By 
this means many men found their hands subscribed to petitions 
of which they before had never heard." — Clarendon, " History 
of Rebellion," vol. ii. p. 357. 

1 See May, " Constitutional History of England," vol. i. pp. 
410-413. 



222 THE GOVERNMENT OF THE UNITED STATES. 

The Right to Bear Arms. — Unprincipled rulers have 
repeatedly made use of standing armies to trample 
upon the rights of the people, and under the pre- 
tence of preventing popular insurrections and re- 
sistance to the government, have disarmed the 
people and forbidden them to bear arms. The 
maintenance of a regular force for the alleged se- 
curity of the government has always been a cause 
of distrust to a free people, and a means of ex- 
citing alarm. The right, therefore, of a people to 
bear arms is one of the great safeguards of liberty, 
and " a strong moral check against the usurpations 
and arbitrary power of rulers." To guard and per- 
petuate this right, it is provided that inasmuch as 
a well-regulated militia is necessary to the security 
of a free state, the right of the people to keep and 
bear arms shall not be infringed. 1 The secret car- 
rying of arms may, however, be prohibited, as en- 
dangering the lives of citizens. 

" In a land of liberty it is extremely dangerous to make a 
distinct order of the profession of arms. In absolute mon- 
archies this is necessary for the safety of the prince, and arises 
from the main principle of their constitution, which is that of 
governing by fear ; but in free states the profession of a sol- 
dier, taken singly and merely as a profession, is justly an ob- 
ject of jealousy. In these, no man should take up arms but 
with a view to defend his country and its laws : he puts not 
off the citizen when he enters the camp; but it is because he 
is a citizen, and would wish to continue so, that he makes 
himself for a while a soldier." — Blackstone, " Commentaries on 
the Laws of England," bk. I. p. 408. 

Security of the Dwelling, etc. — The security of the 
dwelling and of person, papers, and effects is guar- 

* The Constitution, Amendments, Article II. 






RIGHTS AND PRIVILEGES. 223 

anteed by the third and fourth amendments. The 
third amendment prohibits the quartering of sol- 
diers in private houses. The fourth provides safe- 
guards against unreasonable searches and seizures. 
Quartering Soldiers. — One of the means frequently- 
used by tyrannical governments to worry disaf- 
fected citizens into submission was to quarter sol- 
diers upon them, to be fed at their expense. In 
this way the quiet of home was broken up, private 
property was appropriated without compensation, 
and families were subjected to a thousand annoy- 
ances from a rude and insolent soldiery. Inasmuch 
as standing armies are recruited to a very consid- 
erable extent from classes that have but little re- 
gard for private rights or public morals, to billet 
any portion of these upon citizens obnoxious to the 
government is a most cruel form of oppression. 
The attempt of England to quarter troops upon the 
colonies was a cause of bitter irritation, and culmi- 
nated in Boston in what is known as the " Boston 
massacre." The prohibition that no soldier shall 
in time of peace be quartered in any house without 
the consent of the owner, nor in time of war but 
in a manner to be prescribed by law, 1 protects the 
citizen against the exercise of this terrible instru- 
ment of oppression. 

Parliament, in 17G5, authorized " as many troops to be sent 
to America as the ministers saw fit. For these troops, by a 
special enactment, known as the ' Quartering Act,' the colonies 
in which they might be stationed were required to find quar- 
ters, fire-wood, bedding, drink, soap, and candles." — Hildreth, 
M History of the United States," vol. ii. p. 525. 

# The Constitution, Amendments, Article III. 



224 THE GOVERNMENT OF THE UNITED STATES. 

Searches and Seizures. — The fourth amendment 
provides that the right of the people to be secure 
in their persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be 
violated, and it sets forth what conditions must be 
fulfilled in order to justify searches and seizures. 
These conditions are, 

1. A warrant must issue ; 

2. A probable cause must be shown by oath 

or affirmation ; 

3. The warrant itself must particularly describe 

the place to be searched, and the persons 

or things to be seized. 
"Warrants are granted by judicial officers, after 
a satisfactory showing is made by the complaining 
party, under oath, that a crime has been committed, 
and that there is reasonable cause to suspect that 
the persons or things to be seized are concealed in 
some specified house or place. This provision pro- 
tects the liberty and property of the citizen against 
mere suspicion or vague accusation. Of course it 
does not prevent a police officer from forcing an 
entrance into a house and making arrests without 
a warrant, when a crime is being committed, or for 
other exceptionable cases. The person so arrested 
must, however, be immediately brought before a 
magistrate or court of competent jurisdiction, and 
the officer making the arrest must show good cause 
that the public interest required the arrest to be 
thus made. 

"The warrant is the paper which justifies the arresting per- 
son to commit so grave an act as depriving a citizen or alien 






RIGHTS AND PRIVILEGES. 225 

of personal liberty."— Lieber, " Civil Liberty and Self-Govern- 
ment," p. 02. 

Every Man's House his Castle. — Although it is a 
well-established principle of English law that every 
man's house is his castle, that is, every man has the 
right to close the door of his house against an in- 
truder, and, if need be, use all necessary violence in 
defence of himself and his household, it was not till 
after a long and ardent struggle in England that 
this simple principle was established. Prior to the 
time of the American Revolution, officers of the 
government could force an entrance into any house, 
at any time of the day or night, open any desk, 
seize letters and private papers, and carry into cus- 
tody suspected or obnoxious persons. One of the 
immediate causes of the estrangement between the 
American colonies and the mother country was the 
granting of warrants to custom-house officials to 
search, when and where they pleased, for smuggled 
goods, and to call on the by-standers to assist them. 
These writs to enforce obnoxious revenue-laws were 
bitterly opposed, and became so excessively unpop- 
ular as to be seldom used. 1 

" The poorest man may, in his cottage, bid defiance to all the 
fbrce of the crown. It may be frail ; its roof may shake ; the 
wind may blow through it ; the storms may enter, the rains 
may enter, — but the King of England cannot enter ! all his 
forces dare not cross the threshold of the ruined tenement." — 
Pitt. 

Private Property. — "While it is the duty of the state 
to afford every possible protection to individual 

1 Hildreth, "History of the United States," vol. ii. p. 499. 
10* 



226 THE GOVERNMENT OF THE UNITED STATES. 

property, and to guarantee the rightful and peace- 
ful enjoyment of the same, the right is inherent in 
all governments to appropriate and control private 
property for the public benefit. Unless govern- 
ment possessed this right, any individual could ob- 
struct and even put a stop to a public necessity. 
The government may seize and appropriate the land 
of the individual for the use of the state, as in the 
case of light-houses, docks, military roads, public 
buildings, and other public improvements, but when- 
ever this is done the Constitution requires that the 
owner shall receive just compensation for the same. 
If the proper officers cannot agree with the owner 
on the compensation, an impartial tribunal is ap- 
pointed to fix a value. The state does not decide 
this for itself, as it is an interested party. This 
power to take private property for public use is 
often delegated to corporations for the purpose of 
constructing railroads, canals, and other works of 
public utility. The inherent right of a state to 
appropriate and control individual property for the 
public benefit, without regard to the wishes of the 
owner, is designated the right of eminent domain. 

" Title to property is always held upon the implied condition 
that it must be surrendered to the government, either in whole 
or in part, when the public necessities, evinced according to 
the established forms of law, demand." — Hogeboom. 

Jury Trial in Civil Cases. — The Constitution, as 
originally adopted, provided for trial by jury in 
criminal, but not in civil cases, and conferred upon 
the Supreme Court appellate jurisdiction both as 



RIGHTS AND PRIVILEGES. 227 

to law and fact in cases at common law, 1 as well 
as in those of equity and admiralty. The omission 
of any express provision for trial by jury in civil 
cases, and the power of the Supreme Court to re- 
examine the facts once tried by a jury, gave much ' 
alarm, and led to the adoption of the seventh amend- 
ment. It provides, 

1. That the right of trial by jury shall be pre- 

served in suits at common law where the 
value in controversy exceeds twenty dol- 
lars. 

2. That no fact tried by a jury shall be oth- 

erwise re-examined in any court of the 
United States than according to the rules 
of the common law. 2 
It has been justly said that trial by jury has al- 
ways been an object of deep interest and solicitude 
to the American people, and every encroachment 
upon it has been watched with jealousy. 

Suits at Common Law. — The expression " in suits 
at common law " is here used in contradistinction 
to suits in equity and in admiralty and maritime 
jurisprudence, in which the right of trial by jury 
does not exist. This right applies to suits at com- 
mon law where the value in controversy exceeds 
twenty dollars, and also to all criminal cases, as 
will be subsequently shown. In civil actions it 
may he waived, but not in criminal. When a per- 
son is accused of a criminal offence, he cannot waive 

1 The Constitution, Article III. sec. 2, cl. 2. 

2 The Constitution, Amendments, Article VII. 



228 THE GOVERNMENT OF THE UNITED STATES. 

this important privilege, "A civil suit has for its 
object the recovery of private or civil rights, or 
compensation for their infraction." 

Questions of Fact. — After a question of fact has 
been decided by a jury, it cannot be re-examined 
except by another jury on a new trial. This is ac- 
cording to the rules of common law. When an 
appeal is made, the appellate court has nothing to 
do with the decision of the jury in mere matters of 
fact, but it has simply to decide whether an error 
of law has been committed. Juries pass upon the 
facts, judges are the interpreters of the laws. If 
appellate courts had the power to review facts tried 
by a jury, trial by jury would be a mere form and 
of little importance. 

" The privilege of trial by jury is of great antiquity. Some 
writers will have it that juries were in use among the Britons, 
but it is more probable that this trial was introduced by the 
Saxons. Yet some say that we had our trial by jury from the 
Greeks, the first trial by jury of twelve men being in Greece." 
— Jacob. 

Persons Accused of Crime. — It is a principle gener- 
ally recognized by all civilized nations, though not 
always duly observed, that a man shall be held in- 
nocent until proved by due process of law to be 
guilty. Governments, like individuals, are often 
eager to carry a point, and the rights of the ac- 
cused are liable to be disregarded. It is always 
difficult for an irritated power to have a due regard 
for the rights of an offender. Even the people 
themselves, when aroused by a spirit of violence 
and vindictiveness, are, like governments, equally in 



RIGHTS AND PRIVILEGES. 229 

danger of disregarding the rights of persons against 
whom grave offences are alleged. To fully protect 
the legal rights and privileges of persons accused 
of crime, the fifth, sixth, and eighth amendments 
provide, 

1. That no person shall be held to answer for a 

capital, or otherwise infamous crime, un- 
less on a presentment or indictment of a 
grand jury ; 

2. That excessive bail shall not be required ; 

3. That the accused shall have a speedy and 

public trial, by an impartial jury of the 
State and district wherein the crime has 
been committed ; 

4. That he shall be informed of the nature and 

cause of the accusation, and be confront- 
ed with the witnesses against him ; 

5. Have compulsory process for obtaining wit- 

nesses in his favor, and have the assist- 
ance of counsel for his defence ; 

6. Not be compelled, in any criminal case, to 

be a witness against himself ; 

7. Not be punished with excessive fines, or 

with cruel and unusual punishments ; 

8. Not be subject for the same offence to be 

twice put in jeopardy of life and limb ; 

9. Not be deprived of life, liberty, or property, 

without due process of law. 
Grand Jury. — The purpose of a grand jury is to 
protect the individual against malicious and un- 
founded prosecution on the part of the government. 
The government may accuse persons of offences, 



230 THE GOVERNMENT OF THE UNITED STATES. 

but a body of men, a grand jury, chosen from the 
people, must first decide whether such persons shall 
be put upon trial for the alleged offences. A grand 
jury consists of not less than twelve and not more 
than twenty-three men. They sit in secret, exam- 
ine the evidence against an accused person, and de- 
cide whether the accusation is sustained by the evi- 
dence. If at least twelve jurors believe that there 
is sufficient ground for a trial, a written accusation, 
called an indictment, is presented to the court. This 
does not apply in cases arising in the land and na- 
val forces, or in the militia when in actual service 
in time of war or public danger. 1 An entirely dif- 
ferent method of trial and punishment is required 
in the exigencies of war, and for the government 
of the army and navy, than for the protection of 
citizens in time of peace. 

Terms Defined. — An indictment is a written accu- 
sation against one or more persons of an offence, 
presented to a grand jury by the attorney-general 
or other officer representing the government. If, 
after examining witnesses, the evidence against 
the persons named is sufficient to warrant a trial, 
the grand jury write across the indictment " a true 
bill;" if, on the contrary, the evidence is insuffi- 
cient, they indorse on the indictment " not a true 
bill," or " not found." Sometimes notice is taken by 
a grand jury of an offence from their own knowl- 
edge or observation, without any bill of indictment 
being laid before them. This is designated a pre- 

1 The Constitution, Amendments, Article V. 



RIGHTS AND PRIVILEGES. 231 

sentment. Upon a presentment, the officer whose 
duty it is to prosecute must frame a bill of indict- 
ment, before the party accused can be brought to 
trial. 1 The phrase "infamous crime" has been 
held by the Supreme Court to include any crime 
punishable by imprisonment at hard labor for a 
term of years." 

Difference between a Grand and Petit Jury. — A grand 
jury decides whether the evidence against a person 
warrants his trial ; a petit jury decides whether the 
accused is guilty or innocent of the crime alleged. 
The first only examines witnesses for the prosecu- 
tion ; the second hears the testimony for both the 
prosecution and the defence. A grand jury con- 
sists of not less than twelve and not more than 
twenty-three men ; a petit jury, of twelve. A de- 
cision can be reached by a grand jury when not 
less than twelve jurors agree, but no result can be 
attained by a petit jury unless a verdict is unani- 
mous. 

" The founders of the English law have, with excellent fore- 
cast, contrived that no man should be called to answer to the king 
for any capital crime unless upon the preparatory accusation of 
twelve or more of his fellow-subjects, the grand jury ; and that 
the truth of every accusation . . . should afterwards be confirmed 
by the unanimous suffrage of twelve of his equals and neigh- 
bors indifferently chosen and superior to all suspicion.' 7 — Black- 
stone, " Commentaries^Dn the Laws of England," bk. IV. p. 349. 

Excessive Bail. — Although the law theoretically 

1 Blackstone, M Commentaries on the Laws of England," bk. 
IV. p. 301, 302. 

- Ex parte Wilson, 114 "United States," p. 430. 



232 THE GOVERNMENT OF THE UNITED STATES. 

presumes that all men are innocent until proved to 
be guilty, some apparent contradictions necessarily 
arise, as when, for example, a person arrested on a 
criminal change is deprived of his personal liberty 
until his trial can take place. To mitigate as far 
as possible the evils that are likely to arise in tak- 
ing such steps as are necessary and proper for the 
protection of society, the giving of bail is practised 
by civilized nations. When a person is arrested 
for a supposed offence, one or more of his friends 
may become security, to a specified sum of money, 
for his appearance in court on the day of trial. If 
he fails to appear, the money is forfeited to the 
government. The amount of bail depends upon 
the seriousness of the charge and the pecuniary re- 
sponsibility of the accused. "What might be con- 
sidered reasonable bail to a man of means, might 
be excessive to a poor man. A bail is excessive 
when it is greater than what is really necessary to 
secure the attendance of the accused. Under the 
arbitrary rule of kings such excessive bail was 
oftentimes required, in the case of those who had 
incurred the displeasure of the government, that it 
was impossible to procure it, and innocent persons 
were committed to prison, and remained there for 
long periods of time, during the pleasure of the 
king. In this way cruel wrongs w r ere committed. 
Bail is not usually allowed in cases where the of- 
fence is punishable by death or imprisonment for 
life. 

A Speedy and Public Trial. — It has been a favorite 
method of despotic rulers to defer, for a long period 



RIGHTS AND PRIVILEGES. 233 

of time, the trial of obnoxious persons, in order to 
subdue the will of their victims by long imprison- 
ment. Trials also were conducted in secret, with- 
out the presence of the friends of the accused, and 
persons were condemned to suffer cruel punish- 
ments, simply to gratify the resentments of the 
king or his favorites. When a person is accused of 
a crime, he certainly is entitled to a speedy trial, 
and common fairness demands that the trial shall 
be open to the public, and opportunity given to the 
prisoner's friends to see that justice is impartially 
administered. 

An Impartial Jury. — The jury here meant is a tri- 
bunal of twelve persons, who, under the direction of 
the court, listen to the evidence and render a ver- 
dict. The trial must be by an impartial jury of 
the State, or, if the State is divided into judicial 
districts, of the district wherein the crime is com- 
mitted. To compel a person to be tried in another 
State, at an inconvenient distance from his friends 
and from the witnesses in his own behalf, to be 
subject to the unnecessary expense that such a 
course would require, would be an unnecessary 
hardship. Offences against the United States are 
tried in the judicial district where the offences are 
committed ; offences against the State, in the coun- 
ty. It is to be presumed that in the locality where 
a person is known will be found those who are best 
qualified to judge of the credibility of the witnesses 
who give evidence for or against the accused, and 
to decide upon his guilt or innocence. In order to 
secure an impartial jury, either party in a suit may 



234 THE GOVERNMENT OF THE UNITED STATES. 

object to certain persons serving as jurors, on the 
ground of prejudice, or for some other cause. This 
is called the right of challenge. A certain number 
of peremptory challenges are also allowed ; that is, 
a certain number of persons may be rejected as 
jurors, without any reason being assigned. A unani- 
mous verdict is required to convict or acquit. If a 
jury fails to agree, a new trial becomes necessary, 
and a new jury is summoned. 

1. " Which district shall have been previously ascertained 
by law," is equivalent to, " which district must have been pre- 
viously determined by law." — See Amendments, Article VI. 

2. One of the grievances of the colonies against Great Britain, 
as set forth in the Declaration of Independence, was "for trans- 
porting us beyond the seas, to be tried for pretended offences." 

3. "It is the most transcendent privilege which any sub- 
ject can enjoy, or wisli for, that he cannot be affected either in 
his property, his liberty, or his person, but by the unanimous 
consent of twelve of his neighbors and equals." — Blackstone, 
" Commentaries on the Laws of England," bk. III. p. 379. 

The Accusation and Witnesses for the Prosecution. — 
It would at first thought seem superfluous to pro- 
vide in the Constitution that an accused person 
should be informed of the nature and cause of the 
accusation, and be confronted with the witnesses 
against himself. Common fairness would seem to 
require such a course. When it is remembered that 
the government, with all its resources, is the prose- 
cutor, and a single individual the defendant, it would 
be reasonable to suppose that every facility for es- 
tablishing his innocence would be accorded to the 
accused. The experience of the past has taught a 
far different lesson. Persons have been frequently 



RIGHTS AND PRIVILEGES. 235 

imprisoned without any cause being assigned until 
the day of the trial, and have been kept in ignorance 
as to whom their accusers were. Even deceased 
persons have been tried for pretended crimes, found 
guilty, and the property inherited from them by 
their families confiscated. 

Witnesses and Counsel for the Defence. — Strange as 
it now r appears, it was long the practice in England 
and France not to allow a person accused of a capi- 
tal offence to make use of the testimony of wit- 
nesses to establish his innocence. This right was 
recognized in minor offences, but it was denied in 
grave crimes punishable by death. It is difficult 
to account for the fact that in misdemeanors the 
accused should be allowed to exculpate himself by 
the testimony of witnesses, but when his life w r as 
in jeopardy he should be debarred from proofs that 
were allowed him in prosecutions for petty offences. 
It has been suggested that this monstrous custom 
probably arose from the active interest that the 
crown always took in the conviction of persons ac- 
cused of capital offences, and the base subserviency 
of the courts to the w r ishes of the king. In Eng- 
land it is only within the present century (1836) 
that a person accused of a crime is entitled to the 
assistance of counsel for his defence. In civil cases 
and for misdemeanors, he was permitted the aid of 
counsel, but when the government charged a person 
■with grave offences, this privilege was denied, ex- 
cept when legal questions arose. These the counsel 
for the defence w r as allowed to argue. The judge, 
it was said, stood in the relation of counsel to the 



236 THE GOVERNMENT OF THE UNITED STATES. 

prisoner, and it was his duty to see that " the pro- 
ceedings against him were legal and strictly regu- 
lar." It often happened, however, that the judge 
perverted both the law and the evidence, while as- 
suming to be counsel for the prisoner. It required 
a long struggle to extend the same rights to per- 
sons charged with criminal offences that were ac- 
corded to those charged with misdemeanors. Now 
an accused person is not only allowed to make any 
proof in his defence that he can produce by lawful 
witnesses, but he is entitled to have compulsory 
process for obtaining witnesses in his favor ; that is, 
the court must compel such witnesses to appear at 
the trial and to testify. The humanity of the law 
has also provided that if a person is unable to em- 
ploy counsel, or to meet the expense of summoning 
witnesses, the court shall designate some one to de- 
fend him, and shall compel the attendance of wit- 
nesses in his favor, at the expense of the govern- 
ment. 

Accused Persons not Required to Give Evidence. — In 
France and other foreign countries, the custom of 
extorting a confession by the torture of the prisoner 
was introduced and practised. This was done on 
the plea "that innocence would manifest itself by 
a stout denial or guilt by a plain confession." It 
frequently happened that innocent persons, when 
subjected to the rack, gave evidence criminating 
themselves, in order to put an end to their suffer- 
ings. Even when the rack was not in use, bullying 
and oppressive judges frightened prisoners into ad- 
missions that criminated themselves. A person ac- 



RIGHTS AND PRIVILEGES. 237 

cased of a grave crime, even when innocent, labors 
under a serious disadvantage, and he is not likely 
to be in a condition of mind favorable to giving 
clear and convincing proofs of his innocence, when 
subject to an examination as a witness against him- 
self. 

The Marquis Beccaria lias thus ridiculed the practice of ex- 
tortiug a confession by the use of the rack : " The force of the 
muscles and sensibility of the nerves of an innocent person be- 
ing given, it is required to find the degree of pain necessary to 
make him confess himself guilty of a given crime." 

Excessive Fines or Cruel Punishments. — One of the 
most horrible chapters in the history of criminal 
law is the inhuman and cruel punishments that 
have been inflicted on condemned persons. Human 
ingenuity has been taxed to the uttermost to devise 
atrocious and revolting punishments. Enormous 
fines have been imposed for slight offences, and 
families have been impoverished by the excessive 
assessments of vindictive judges who were the in- 
struments of tyrannical rulers. It is right that the 
degrading and sanguinary punishments of the past 
should be prohibited, although there would seem 
to be little danger of such shocking practices in a 
free government like our own. 

In San Francisco an ordinance was passed declaring that 
any male person confined in the county jail should have the 
hair of his head cut to within an inch of his scalp. To a 
Chinaman the loss of his queue was regarded not only as a 
disgrace, but as entailing suffering after death. This kind of 
punishment was declared to be unconstitutional by the Su- 
preme Court of the United States. 

Twice in Jeopardy. — After a person has been tried 



238 THE GOVERNMENT OF THE UNITED STATES. 

for an offence, and a verdict of acquittal or convic- 
tion has been passed upon him, he cannot be tried 
a second time for the same offence. He may, after 
conviction, obtain a new trial if an error of law has 
been committed, but this is not putting him in 
jeopardy a second time, as it is given for his own 
benefit. After acquittal it is impossible for the 
government to secure a new trial, even though some 
error has been committed by judge or jury, as this 
would put a person twice in jeopardy. Otherwise 
a government might harass an obnoxious individual 
by repeated trials until he had spent all his sub- 
stance in his own defence. In fact this has been 
a common means of oppression in the past. Only 
when a jury fails to agree on a verdict can a man 
be tried a second time for the same crime. 

Life, Liberty, and Property. — The fifth amendment 
provides that no person shall be deprived of life, 
liberty, or property, without due process of law. 
By due process of law, or the law of the land, which 
are equivalent terms, is meant those fundamental 
principles and established maxims of law for the 
protection and enforcement of private rights which 
lie at the basis of all judicial proceedings, and which 
are " intended to secure the individual from the 
arbitrary exercise of the powers of government." 
A distinguished jurist has said that the words " by 
the law of the land" seem to mean that no member 
of the state shall be deprived of any of his rights 
and privileges, unless the matter shall be adjudged 
against him upon trial had according to the course 
of the common law. It must be ascertained judi- 












RIGHTS AND PKIVILEGES. 239 

cially that lie lias forfeited his privileges, or that 
some one else has a superior title to the property 
he possesses, before either of them can be taken 
from him. The words " due process of law " cannot 
mean less than a prosecution or suit instituted and 
conducted according to the prescribed forms and 
solemnities for ascertaining guilt, or determining 
the title to property. 1 

" By ( the law of the land ' is most clearly intended the gen- 
eral law ; a law which hears before it condemns ; which proceeds 
upon inquiry, and renders judgment only after trial. The mean- 
ing is that every citizen shall hold his life, liberty, property, and 
immunities under the protection of the general rules which gov- 
ern society." — Webster, Dartmouth v. Woodward, 4 Wheaton, 
p. 581. 

The Fifteen Amendments. — Fifteen amendments 
have thus far been added to the Constitution. The 
first ten, as has been observed, were designed to 
protect more completely the liberties of the people 
and the rights of the States. The eleventh amend- 
ment provides that no State shall be prosecuted in 
the federal courts by citizens of another State or by 
subjects of a foreign state. The twelfth introduces 
a change in the cumbrous method of choosing a 
President and Yice-Presiclent. The last three, the 
result of the Civil "War, were designed to abolish 
what was the immediate cause of the war, sla- 
very ; to protect those who were formerly slaves in 
their newly acquired rights ; to provide against any 
attempt to repudiate the public debt of the United 

1 Bronson, Taylor v. Porter and Ford, 4 Hill, pp. 146, 147. 



240 THE GOVERNMENT OF THE UNITED STATES. 

States, or to pay any debt or loss incurred in aid 
of rebellion against the national government ; and 
to debar the United States or any State from deny- 
ing or abridging the right of citizens of the United 
States to vote, on account of race, color, or pre- 
vious condition of servitude. 

" t The first amendments were for the purpose of keeping the 
central power within due limits, at a time when the tendency 
to centralization' w T as alarming to many persons; the last w T ere 
adopted to impose new restraints on State sovereignty, at a 
time when State powers had nearly succeeded in destroying 
the national sovereignty." — Cooley, " Principles of Constitu- 
tional Law/' p. 202. 

Conclusion. — It is impossible to study the origin 
and trace the growth of the Constitution without 
a feeling of profound reverence for those illustrious 
men who so wisely laid the foundation of our pres- 
ent system of government amid the greatest diffi- 
culties and the most diverse and conflicting inter- 
ests. It is a marvel that a constitution should be 
struck off at one time so well adapted to the con- 
ditions and needs of a people made up of so many 
different elements, with interests diametrically op- 
posed to one another, under conditions and sur- 
roundings entirely different. The wisdom and un- 
selfish patriotism exhibited by those to whom the 
important and delicate task was given of inaugurat- 
ing the new government in the midst of financial 
distress, against the avowed opposition of no incon- 
siderable minority, and w'ith a widespread feeling 
of suspicion and distrust among the States, entitle 
these distinguished patriots to the lasting gratitude 



RIGHTS AND PRIVILEGES. 241 

of the American people. In the spirit of forbear- 
ance and mutual concession it was established, in 
unforeseen embarrassments and difficulties it has 
been loyally sustained, in the blood of heroes it has 
been consecrated. In this spirit it is to be hoped 
that it will ever be cherished and maintained by a 
liberty-loving and grateful people. 
11 



242 THE GOVERNMENT OF THE UNITED STATES. 

United States Government. 

President. 
Vice-President. 

Secretary of State. 

Secretary of the Treasury. 

Secretary of War. 
Cabinet. «{ Attorney-General. 

Postmaster-General. 

Secretary of the Navy. 

Secretary of the Interior. 



Congress, 



( Senate. 



Courts. 



House of Representatives, 
f Supreme Court. 

Circuit Courts. 

District Courts. 
L Court of Claims. 

Salaries of Some Officers. 

President $50,000 

Vice-President 8,000 

Cabinet Officers 8,000 

Speaker of the House of Representatives 8,000 

Senators 5,000 

Representatives 5,000 

Chief-Justice of the Supreme Court 10,500 

Associate Justices 10,000 

Circuit Judges 0,000 

District Judges 3,500 to 5,000 

Judges of the Court of Claims 4,500 

Ministers Plenipotentiary to France, Great Britain, 

Germany, and Russia 17,500 

Ministers Plenipotentiary to Austria, China, Brazil, 

Italy, Japan, Mexico, and Spain 12,000 

Ministers Resident 7,500 

Charges d'Affaires 5,000 

Consuls fees, 1,000 to 0,000 






CONSTITUTION OF THE UNITED STATES 









CONSTITUTION 

OF THE 

UNITED STATES OF AMERICA.* 



WE the People of the United States, in order to 
form a more perfect Union, establish Justice, insure do- 
mestic Tranquillity, provide for the common defence, 
promote the general Welfare, and secure the Blessings 
of Liberty to ourselves and our Posterity, do ordain and 
establish this Constitution for the United States of 
America. 

Article L 

Sec. 1. All legislative Powers herein granted shall be 
vested in a Congress of the United States, which shall 
consist of a Senate and House of Representatives. 

Sec. 2. a The House of Representatives shall be com- 
posed of Members chosen every second Year by the Peo- 
ple of the several States, and the Electors in each State 
shall have the Qualifications requisite for Electors of the 
most numerous Branch of the State Legislature. 

2 No Person shall be a Representative who shall not 
have attained to the Age of twenty five Years, and been 
seven Years a Citizen of the United States, and who 
shall not, when elected, be an Inhabitant of that State 
in which he shall be chosen. 

Representatives and direct Taxes shall be apportioned 

* The Constitution is here given with the same capitalization, punctu- 
ation, and spelling as in the original instrument. At the time the 
Constitution was framed it was the custom to commence every noun 
with a capital. 



246 CONSTITUTION OF THE UNITED STATES. 

among the several States which may be included with- 
in this Union, according to their respective Numbers, 
which shall be determined by adding to the whole Num- 
ber of free Persons, including those bound to Service 
for a Term of Years, and excluding Indians not taxed, 
three fifths of all other Persons. The actual Enume- 
ration shall be made within three Years after the first 
Meeting of the Congress of the United States, and 
within every subsequent Term of ten Years, in such 
Manner as they shall by Law direct. The Number of 
Representatives shall not exceed one for every thirty 
Thousand, but each State shall have at Least one Rep- 
resentative; and until such enumeration shall be made, 
the State of New Hampshire shall be entitled to 
chuse three, Massachusetts eight, Rhode Island and 
Providence Plantations one, Connecticut five, New- 
York six, New Jersey four, Pennsylvania eight, Dela- 
ware one, Maryland six, Virginia ten, North Carolina 
five, South Carolina five, and Georgia three. 

4 When vacancies happen in the Representation from 
any State, the Executive Authority thereof shall issue 
Writs of Election to fill such vacancies. 

The House of Representatives shall chuse their 
Speaker and other Officers ; and shall have the sole 
Power of Impeachment. 

Sec. 3. The Senate of the United States shall be com- 
posed of two Senators from each State, chosen by the 
Legislature thereof, for six Years ; and each Senator shall 
have one Vote. 

immediately after they shall be assembled in Conse- 
quence of the first Election, they shall be divided as equal- 
ly as may be into three Classes. The Seats of the Sena- 
tors of the first Class shall be vacated at the Expiration 
of the second Year, of the second Class at the Expiration 
of the fourth Year, and of the third Class at the Expira- 
tion of the sixth Year, so that one-third may be chosen 
every second Year; and if Vacancies happen by Resig- 



CONSTITUTION OF THE UNITED STATES. 247 

nation, or otherwise, during the Recess of the Legis- 
lature of any State, the Executive thereof may make 
temporary Appointments until the next Meeting of the 
Legislature, Avhich shall then fill such Vacancies. 

3 No Person shall be a Senator who shall not have at- 
tained to the Age of thirty Years, and been nine Years 
a Citizen of the United States, and w T ho shall not, when 
elected, be an Inhabitant of that State for which he 
shall be chosen. 

*The Vice President of the United States shall be 
President of the Senate, but shall have no Vote, j**ffess 
they be equally divided. 

5 The Senate shall chuse their other Officers, and also 
a President pro tempore, in the Absence of the Vice 
President, or when he shall exercise the Office of Presi- 
dent of the United States. 

6 The Senate shall have the sole Power to try all Im- 
peachments. When sitting for that Purpose, they shall 
be on Oath or Affirmation. When the President of the 
United States is tried, the Chief Justice shall preside: 
And no Person shall be convicted without the Concur- 
rence of two thirds of the Members present. 

'Judgment in Cases of Impeachment shall not extend 
further than to removal from Office, and Disqualifica- 
tion to hold and enjoy any Office of honour, Trust or 
Profit under the United States : but the Party convicted 
shall nevertheless be liable and subject to Indictment, 
Trial, Judgment and Punishment, according to Law. 

Sec. 4. 2 The Times, Places and Manner of holding 
Elections for Senators and Representatives shall be pre- 
scribed in each State by the Legislature thereof; but 
the Congress may at any time by Law make or alter 
such Regulations, except as to the Places of chusing 
Senators. 

2 The Congress shall assemble atleast once in every Year, 
and such Meeting shall be on the first Monday in Decem- 
ber, unless they shall by Law appoint a different Day. 



248 CONSTITUTION OF THE UNITED STATES. 

Sec. 5. 'Each House shall be the Judge of the Elec- 
tions, Returns and Qualifications of its own Members, 
and a Majority of each shall constitute a Quorum to do 
Business; but a smaller Number may adjourn from day 
to day, and may be authorized to compel the Attend- 
ance of absent Members, in such Manner, and under 
such Penalties as each House may provide. 

2 Each House may determine the Rules of its Proceed- 
ings, punish its Members for disorderly Behaviour, and, 
with the Concurrence of two thirds, expel a Member. 

3 Each House shall keep a Journal of its Proceedings, 
and from time to time publish the same, excepting such 
Parts as may in their Judgment require Secrecy; and 
the Yeas and Nays of the Members of either House on 
any question shall, at the Desire of one fifth of those 
Present, be entered on the Journal. 

'Neither House, during the Session of Congress, shall, 
without the Consent of the other, adjourn for more than 
three days, nor to any other Place than that in which 
the two Houses shall be sitting. 

Sec. 6. x The Senators and Representatives shall receive 
a Compensation for their Services, to be ascertained by 
Law, and paid out of the Treasury of the United 
States. They shall in all Cases, except Treason, Felony 
and Breach of the Peace, be privileged from Arrest dur- 
ing their Attendance at the Session of their respective 
Houses, and in going to and returning from the same; 
and for any Speech or Debate in either House, they shall 
not be questioned in any other Place. 

2 No Senator or Representative shall, during the Time 
for which he was elected, be appointed to any civil 
Office under the Authority of the United States, which 
shall have been created, or the Emoluments whereof 
shall have been encreased during such time; and no Per- 
son holding any Office under the United States, shall be a 
Member of either House during his Continuance in Office. 

Sec. 7. *AU Bills for raising Revenue shall originate 



CONSTITUTION OF THE UNITED STATES. 249 

in the House of Representatives; but the Senate may 
propose or concur with Amendments as on other Bills. 

"Every Bill which shall have passed the House of 
Representatives and the Senate, shall, before it be- 
come a Law, be presented to the President of the 
United States; If he approve he shall sign it, but if 
not he shall return it, with his Objections to that House 
in which it shall have originated, who shall enter the 
Objections at large on their Journal, and proceed to re- 
consider it. If after such Reconsideration two thirds 
of that House shall agree to pass the Bill, it shall be 
sent, together with the Objections, to the other Hor.se, 
by which it shall likewise be reconsidered, and if ap- 
proved by two thirds of that House, it shall become a 
Law. But in all such Cases the Votes of both Houses 
shall be determined by Yeas and Nays, and the Names 
of the Persons voting for and against the Bill shall be 
entered on the Journal of each House respectively. If 
any Bill shall not be returned by the President within 
ten Days (Sundays excepted) after it shall have been 
presented to him, the Same shall be a Law, in like Man- 
ner as if he had signed it, unless the Congress by their 
Adjournment prevent its Return, in which Case it shall 
not be a Law. 

3 Every Order, Resolution, or Vote to which the Con- 
currence of the Senate and House of Representatives 
may be necessary (except on a question of Adjourn- 
ment) shall be presented to the President of the United 
States; and, before the Same shall take Effect, shall be 
approved by him, or, being disapproved by him, shall 
be repassed by two thirds of the Senate and House of 
Representatives, according to the Rules and Limitations 
prescribed in the Case of a Bill. 

Sec. 8. l The Congress shall have Power to lay and 
collect Taxes, Duties, Imposts and Excises, to pay the 
Debts and provide for the common Defence and gen- 
eral Welfare of the United States; but all Duties, Im- 
11* 



250 CONSTITUTION OF THE UNITED STATES. 

posts and Excises shall be uniform throughout the 
United States; 

2 To borrow Money on the credit of the United States; 

3 To regulate Commerce with foreign Nations, and 
among the several States, and with the Indian Tribes; 

*To establish an uniform Rule of Naturalization, and 
uniform Laws on the subject of Bankruptcies through- 
out the United States; 

5 To coin Money, regulate the Value thereof, and of 
foreign Coin, and fix the Standard of Weights and 
Measures ; 

6 To provide for the Punishment of counterfeiting the 
Securities and current Coin of the United States; 

7 To establish Post Offices and post Roads; 

8 To promote the Progress of Science and useful Arts, 
by securing for limited Times to Authors and Inventors 
the exclusive Right to their respective Writings and 
Discoveries; 

8 To constitute Tribunals inferior to the supreme Court; 

10 To define and punish Piracies and Felonies commit- 
ted on the high Seas, and Offences against the Law of 
Nations; 

n To declare War, grant Letters of Marque and Repri- 
sal, and make Rules concerning Captures on Land and 
Water; 

ia To raise and support Armies, but no Appropriation 
of Money to that Use shall be for a longer Term than 
two Years; 

13 To provide and maintain a Navy; 

u To make Rules for the Government and Regulation 
of the land and naval Forces; 

16 To provide for calling forth the Militia to execute 
the Laws of the Union, suppress Insurrections and re- 
pel Invasions; 

16 To provide for organizing, arming, and disciplining, 
the Militia, and for governing such Part of them as 
may be employed in the Service of the United States, 



CONSTITUTION OF THE UNITED STATES. 251 

reserving to the States respectively, the Appointment of 
the Officers, and the Authority of training the Militia 
according to the discipline prescribed by Congress; 

17 To exercise exclusive Legislation in all Cases whatso- 
ever, over such District (not exceeding ten Miles square) 
as may, by Cession of particular States, and the Accept- 
ance of Congress, become the Seat of the Government 
of the United States, and to exercise like Authority 
over all Places purchased by the Consent of the Legis- 
lature of the State in which the Same shall be, for the 
Erection of Forts, Magazines, Arsenals, Dock-Yards, and 
other needful Buildings; — And 

J8 To make all Laws which shall be necessary and prop- 
er for carrying into Execution the foregoing Powers, 
and all other Powers vested by this Constitution in the 
Government of the United States, or in any Department 
or Officer thereof. 

Sec. 9. lr The Migration or Importation of such Persons 
as any of the States now existing shall think proper to 
admit, shall not be prohibited by the Congress prior 
to the Year one thousand eight hundred and eight, but 
a Tax or Duty may be imposed on such Importation, not 
exceeding ten dollars for each Person. 

2 The Privilege of the Writ of Habeas Corpus shall not 
be suspended, unless when in Cases of Rebellion or In- 
vasion the public Safety may require it. 

8 No Bill of Attainder or ex post facto Law shall be 
passed. 

4 No Capitation, or other direct, Tax shall be laid, unless 
in Proportion to the Census or Enumeration herein be- 
fore directed to be taken. 

5 No Tax or Duty shall be laid on Articles exported 
from any State. 

6 No Preference shall be given by any Regulation of 
Commerce or Revenue to the Ports of one State over 
those of another; nor shall Vessels bound to, or from, one 
State, be obliged to enter, clear, or pay Duties in another. 



252 CONSTITUTION OF THE UNITED STATES. 

7 No Money shall be drawn from the Treasury, but in 
Consequence of Appropriations made by Law; and a 
regular Statement and Account of the Receipts and Ex- 
penditures of all public Money shall be published from 
time to time. 

8 No Title of Nobility shall be granted by the United 
States: And no Person holding any Office of Profit or 
Trust under them, shall, without the Consent of the 
Congress, accept of any present, Emolument, Office, or 
Title, of any kind whatever, from any King, Prince, or 
foreign State. 

Sec. 10. 'No State shall enter into any Treaty, Alli- 
ance, or Confederation; grant Letters of Marque and 
Reprisal; coin Money; emit Bills of Credit; make any 
Thing but gold and silver Coin a Tender in Payment 
of Debts ; pass any Bill of Attainder, ex post facto 
Law, or Law impairing the Obligation of Contracts, or 
grant any Title of Nobility. 

2 No State shall, without the Consent of the Congress, 
lay any Imposts or Duties on Imports or Exports, except 
what may be absolutely necessary for executing it's in- 
spection Laws; and the net Produce of all Duties and 
Imposts, laid by any State on Imports or Exports, shall 
be for the Use of the Treasury of the United States; 
and all such Laws shall be subject to the Revision and 
Controul of the Congress. 

8 No State shall, without the Consent of Congress, lay 
any Duty of Tonnage, keep Troops, or Ships of War in 
time of Peace, enter into any Agreement or Compact 
with another State, or with a foreign Power, or engage 
in War, unless actually invaded, or in such imminent 
Danger as will not admit of Delay. 

Akticle II. 
Sec. 1. *The executive Power shall be vested in a 
President of the United States of America. He shall 
hold his Office during the Term of four Years, and, to- 



CONSTITUTION OF THE UNITED STATES. 253 

gether with the Vice President, chosen for the same 
Term, be elected, as follows 

2 Each State shall appoint, in such Manner as the 
Legislature thereof may direct, a Number of Electors, 
equal to the whole Number of Senators and Represent- 
atives to which the State may be entitled in the Con- 
gress : but no Senator or Representative, or Person 
holding an Office of Trust or Profit under the United 
States, shall be appointed an Elector. 

The Electors shall meet in their respective States, 
and vote by Ballot for two Persons, of whom one at 
least shall not be an Inhabitant of the same State with 
themselves. And they shall make a List of all the Per- 
sons voted for, and of the Number of Votes for each; 
which List they shall sign and certify, and transmit 
sealed to the Seat of the Government of the United 
States, directed to the President of the Senate. The 
President of the Senate shall, in the Presence of the 
Senate and House of Representatives, open all the 
Certificates, and the Votes shall then be counted. The 
Person having the greatest Number of Votes shall be 
the President, if such Number be a Majority of the 
whole Number of Electors appointed; and if there be 
more than one who have such Majority, and have an 
equal Number of Votes, then the House of Represent- 
atives shall immediately chuse by Ballot one of them 
for President; and if no Person have a Majority, then 
from the five highest on the List the said House shall in 
like Manner chuse the President. But in causing the 
President, the Votes shall be taken by States, the Rep- 
resentation from each State having one Vote; A quorum 
for this Purpose shall consist of a Member or Members 
from two thirds of the States, and a Majority of all the 
States shall be necessary to a Choice. In every Case, 
after the Choice of the President, the Person having 
the greatest Number of Votes of the Electors shall be 
the Vice President. But if there should remain two 



254 CONSTITUTION OF THE UNITED STATES. 

or more who have equal Votes, the Senate shall chuse 
from them by Ballot the Vice President.* 

3 The Congress may determine the Time of chusing 
the Electors, and the Day on which they shall give their 
Votes; which Day shall be the same throughout the 
United States. 

* *No Person except a natural born Citizen, or a Citizen 
of the United States, at the time of the Adoption of this 
Constitution, shall be eligible to the Office of President; 
neither shall any Person be eligible to that Office who 
shall not have attained to the age of thirty five Years, 
and been fourteen Years a Resident within the United 
States. 

5 In Case of the Removal of the President from Office, 
or of his Death, Resignation, or Inability to discharge 
the Powers and Duties of the said Office, the same shall 
devolve on the Vice President, and the Congress may 
by Law provide for the Case of Removal, Death, Resig- 
nation, or Inability, both of the President and Vice Pres- 
ident, declaring what Officer shall then act as President, 
and such Officer shall act accordingly, until the Dis- 
ability be removed, or a President shall be elected. 

6 The President shall, at stated Times, receive for his 
Services a Compensation, which shall neither be en- 
creased nor diminished during the Period for which he 
shall have been elected, and he shall not receive within 
that Period any other Emolument from the United 
States, or any of them. 

7 Before he enter on the Execution of his Office, he 
shall take the following Oath or Affirmation: — 

" I do solemnly swear (or affirm) that I will faithfully 
"execute the Office of President of the United States, 
"and will to the best of my Ability, preserve, protect 
"and defend the Constitution of the United States." 

Sec. 2. 2 The President shall be Commander in Chief 
of the Army and Navy of the United States, and of the 
* Altered by Amendment XII. 



CONSTITUTION OF THE UNITED STATES. 255 

Militia of the several States, when called into the actual 
Service of the United States ; he may require the 
Opinion, in writing, of the principal Officer in each of 
the executive Departments, upon any Subject relating 
to the Duties of their respective Offices, and he shall 
have Power to grant Reprieves and Pardons for Offences 
against the United States, except in Cases of Impeach- 
ment. 

2 He shall have Power, by and with the Advice and 
Consent of the Senate, to make Treaties, provided two 
thirds of the Senators present concur; and he shall 
nominate, and by and with the Advice and Consent of 
the Senate, shall appoint Ambassadors, other public 
Ministers and Consuls, Judges of the supreme Court, 
and all other Officers of the United States, whose Ap- 
pointments are not herein otherwise provided for, and 
which shall be established by Law: but the Congress 
may by Law vest the Appointment of such inferior 
Officers, as they think proper, in the President alone, in 
the Courts of Law, or in the Heads of Departments. 

3 The President shall have Power to fill up all Va- 
cancies that may happen during the Recess of the Sen- 
ate, by granting Commissions which shall expire at the 
End of their next Session. 

Sec. 3. He shall from time to time give to the Con- 
gress Information of the State of the Union, and rec- 
ommend to their Consideration such Measures as he 
shall judge necessary and expedient; he may, on ex- 
traordinary Occasions, convene both Houses, or either 
of them, and in Case of Disagreement between them, 
with Respect to the Time of Adjournment, he may ad- 
journ them to such Time as he shall think proper; he 
shall receive Ambassadors and other public Ministers; 
he shall take Care that the Laws be faithfully execu- 
ted, and shall Commission all the officers of the United 
States. 

Sec. 4. The President, Vice President and all civil 



256 CONSTITUTION OF THE UNITED STATES. 

Officers of the United States, shall be removed from 
Office on Impeachment for, and Conviction of, Treason, 
Bribery, or other high Crimes and Misdemeanors. 

Article III. 

Sec. 1. The judicial Power of the United States, shall 
be vested in one supreme Court, and in such inferior 
Courts as the Congress may from time to time ordain 
and establish. The Judges, both of the supreme and 
inferior Courts, shall hold their Offices during good 
Behavior, and shall, at stated Times, receive for their 
Services, a Compensation, which shall not be dimin- 
ished during their Continuance in Office. 

Sec. 2. ^he judicial Power shall extend to all Cases, 
in Law and Equity, arising under this Constitution, 
the Laws of the United States, and Treaties made, or 
which shall be made, under their Authority;— to all Cases 
affecting Ambassadors, other public Ministers, and Con- 
suls ; — to all Cases of admiralty and maritime Juris- 
diction; — to Controversies to which the United States 
shall be a Party; — to Controversies between two or 
more States; — between a State and Citizens of anoth- 
er State ; — between Citizens of different States, — be- 
tween Citizens of the same State claiming Lands under 
Grants of different States, and between a State, or the 
Citizens thereof, and foreign States, Citizens or Sub- 
jects. 

2 In all Cases affecting Ambassadors, other public Min- 
isters and Consuls, and those in which a State shall be 
Party, the supreme Court shall have original Jurisdic- 
tion. In all the other Cases before mentioned, the 
supreme Court shall have appellate Jurisdiction, both 
as to Law and Fact, with such Exceptions, and under 
such Regulations as the Congress shall make. 

8 The Trial of all Crimes, except in Cases of Impeach- 
ment, shall be by Jury; and such Trial shall be held in 
the State where the said Crimes shall have been commit- 






CONSTITUTION OF THE UNITED STATES. 257 

ted ; but when not committed within any State, the Trial 
shall be at such Place or Places as the Congress may by 
Law have directed. 

Sec. 3. Treason against the United States, shall con- 
sist only in levying War against them, or in adhering 
to their Enemies, giving them Aid and Comfort. No 
Person shall be convicted of Treason unless on the Tes- 
timony of two Witnesses to the same overt Act, or on 
Confession in open Court. 

a The Congress shall have Power to declare the Punish- 
ment of Treason, but no Attainder of Treason shall work 
Corruption of Blood, or Forfeiture except during the 
Life of the Person attainted. 

Article IV. 

Sec. 1. Full Faith and Credit shall be given in each 
State to the public Acts, Records, and judicial Proceed- 
ings of every other State. And the Congress may by 
general Laws prescribe the Manner in which such Acts, 
Records and Proceedings shall be proved, and the Ef- 
fect thereof. 

Sec. 2. : The Citizens of each State shall be entitled to 
all Privileges and Immunities of Citizens in the several 
States. 

2 A Person charged in any State with Treason, Felony, 
or other Crime, who shall flee from Justice, and be found 
in another State, shall on Demand of the executive Au- 
thority of the State from which he fled, be delivered 
up, to be removed to the State having Jurisdiction of 
the Crime. 

3 No Person held to Service or Labour in one State, 
under the Laws thereof, escaping into another, shall, in 
Consequence of any Law or Regulation therein, be dis- 
charged from such Service or Labour, but shall be de- 
livered up on Claim of the Party to whom such Service 
or Labour may be due. 

Sec. 3. *New States may be admitted by the Congress 



258 CONSTITUTION OF THE UNITED STATES. 

into this Union; but no new State shall be formed or 
erected within the Jurisdiction of any other State; nor 
any State be formed by the Junction of two or more 
States, or Parts of States, without the Consent of the 
Legislatures of the States concerned as w r ell as of the 
Congress. 

2 The Congress shall have Power to dispose of and 
make all needful Rules and Regulations respecting the 
Territory or other Property belonging to the United 
States ; and nothing in this Constitution shall be so 
construed as to Prejudice any Claims of the United 
States, or of any particular State. 

Sec. 4. The United States shall guarantee to every 
State in this Union a Republican Form of Government, 
and shall protect each of them against Invasion; and 
on Application of the Legislature, or of the Executive 
(when the Legislature cannot be convened) against do- 
mestic Violence. 

Article V. 

The Congress, whenever two thirds of both Houses 
shall deem it necessary, shall propose Amendments to 
this Constitution, or, on the Application of the Legis- 
latures of two thirds of the several States, shall call a 
Convention for proposing Amendments, which, in either 
Case, shall be valid to all Intents and Purposes, as Part 
of this Constitution, when ratified by the Legislatures of 
three fourths of the several States, or by Conventions 
in three fourths thereof, as the one or the other Mode 
of Ratification may be proposed by the Congress ; Pro- 
vided that no Amendment which may be made prior to 
the Year one thousand eight hundred and eight shall 
in any Manner affect the first and fourth Clauses in the 
Ninth Section of the first Article; and that no State, 
without its Consent, shall be deprived of its equal Suf- 
frage in the Senate. 




CONSTITUTION OF THE UNITED STATES. 259 

Article VI. 

*A11 Debts contracted and Engagements entered into, 
before the Adoption of this Constitution, shall be as 
valid against the United States under this Constitution, 
as under the Confederation. 

'This Constitution, and the Laws of the United States 
which shall be made in Pursuance thereof, and all Trea- 
ties made, or which shall be made, under the Authority 
of the United States, shall be the supreme Law of the 
Land; and the Judges in every State shall be bound 
thereby, any Thing in the Constitution or Laws of any 
State to the Contrary notwithstanding. 

3 The Senators and Representatives before mentioned, 
and the Members of the several State Legislatures, 
and all executive and judicial Officers, both of the 
United States and of the several States, shall be bound 
by Oath or Affirmation, to support this Constitution ; 
but no religious Test shall ever be required as a Quali- 
fication to any Office or public Trust under the United 
States. 

Article VII. 

The Ratification of the Conventions of nine States, 
shall be sufficient for the Establishment of this Consti- 
tution between the States so ratifying the Same. 

Done in Convention, by the Unanimous Consent of the 
States present the Seventeenth Day of September in 
the Year of our Lord one thousand seven hundred 
and Eighty seven, and of the Independance of the 
United States of America the Twelfth In Witness 
w T hereof We have hereunto subscribed our names, 

G° : WASHINGTON— 

PrcsidL and Deputy from Virginia^ 
and by thirty-nine delegates. 



260 CONSTITUTION OF THE UNITED STATES. 



ARTICLES IN ADDITION TO, AND AMEND- 
MENT OF, THE CONSTITUTION OF THE 
UNITED STATES OF AMERICA. 

(Article I.) 

Congress shall make no law respecting an establish- 
ment of religion, or prohibiting the free exercise there- 
of; or abridging the freedom of speech, or of the press, 
or the right of the people peaceably to assemble, and 
to petition the Government for a redress of grievances. 

(Article II.) 
A well regulated Militia, being necessary to the secu- 
rity of a free State, the right of the people to keep and 
bear Arms, shall not be infringed. 

(Article III.) 

No Soldier shall, in time of peace be quartered in 
any house, without the consent of the Owner, nor in 
time of war, but in a manner to be prescribed by law. 

(Article IV.) 
The right of the people to be secure in their per- 
sons, houses, papers, and effects against unreasonable 
searches and seizures, shall not be violated, and no War- 
rants shall issue, but upon probable cause, supported 
by Oath or affirmation, and particularly describing the 
place to be searched, and the persons or things to be 
seized. 

(Article V.) 

No person shall be held to answer for a capital, or 
otherwise infamous crime, unless on a presentment or 
indictment of a Grand Jury, except in cases arising in 
the land or naval forces, or in the Militia, when in ac- 
tual service in time of War or public danger; nor shall 
any person be subject for the same offence to be twice 



CONSTITUTION OF THE UNITED STATES. 261 

put in jeopardy of life or limb; nor shall be compelled 
in any Criminal Case to be a witness against himself, 
nor be deprived of life, liberty, or property, without 
due process of law ; nor shall private property be taken 
for public use, without just compensation. 

(Aeticle VI.) 

In all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial, by an impartial 
jury of the State and district wherein the crime shall 
have been committed, which district shall have been 
previously ascertained by law, and to be informed of 
the nature and cause of the accusation ; to be con- 
fronted with the witnesses against him; to have Com- 
pulsory process for obtaining Witnesses in his favour, 
and to have the Assistance of Counsel for his defence. 

(Article VII.) 

In Suits at common law, where the value in contro- 
versy shall exceed twenty dollars, the right of trial by 
jury shall be preserved, and no fact tried by a jury, 
shall be otherwise re-examined in any Court of the 
United States, than according to the rules of the com- 
mon law. 

(Article VIII.) 

Excessive bail shall not be required, nor excessive 
fines imposed, nor cruel and unusual punishments in- 
flicted. 

(Article IX.) 

The enumeration in the Constitution, of certain rights, 
shall not be construed to deny or disparage others re- 
tained by the people. 

(Article X.) 

The powers not delegated to the United States by 
the Constitution, nor prohibited by it to the States, 
are reserved to the States respectively, or to the people. 



262 CONSTITUTION OF THE UNITED STATES. 

(Article XL) 

The Judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com- 
menced or prosecuted against one of the United States 
by Citizens of another State, or by Citizens or Subjects 
of any Foreign State. 

(Article XII.) 

The Electors shall meet in their respective states, and 
vote by ballot for President and Vice-President, one 
of whom, at least, shall not be an inhabitant of the 
same state with themselves ; they shall name in their 
ballots the person voted for as President, and in dis- 
tinct ballots the person voted for as Vice-President, 
and they shall make distinct lists of all persons voted 
for as President, and of all persons voted for as Vice- 
President, and of the number of votes for each, which 
lists they shall sign and certify, and transmit sealed to 
the seat of the government of the United States, direct- 
ed to the President of the Senate ; — the President of 
the Senate shall, in presence of the Senate and House of 
Representatives, open all the certificates and the votes 
shall then be counted; — The person having the greatest 
number of votes for President, shall be the President, 
if such number be a majority of the whole number of 
Electors appointed ; and if no person have such major- 
ity, then from the persons having the highest numbers 
not exceeding three on the list of those voted for as 
President, the House of Representatives shall choose 
immediately, by ballot, the President. But in choos- 
ing the President, the votes shall be taken by states, 
the representation from each state having one vote ; 
a quorum for this purpose shall consist of a member 
or members from two-thirds of the states, and a ma- 
jority of all the states shall be necessary to a choice. 
And if the House of Representatives shall not choose 



CONSTITUTION OF THE UNITED STATES. 263 

a President whenever the right of choice shall devolve 
upon them, before the fourth day of March next fol- 
lowing, then the Vice-President shall act as President, 
as in the case of the death or other constitutional dis- 
ability of the President. — The person having the great- 
est number of votes as Vice-President, shall be the 
Vice-President, if such number be a majority of the 
whole number of Electors appointed, and if no person 
have a majority, then from the two highest numbers 
on the list, the Senate shall choose the Vice-President; 
a quorum for the purpose shall consist of two-thirds of 
the whole number of Senators, and a majority of the 
whole number shall be necessary to a choice. But no 
person constitutionally ineligible to the office of Presi- 
dent shall be eligible to that of Vice-President of the 
United States. 

(Article XIII.) 

Sec. 1. Neither slavery nor involuntary servitude, 
except as a punishment for crime whereof the party 
shall have been duly convicted, shall exist within the 
United States, or any place subject to their jurisdic- 
tion. 

Sec. 2. Congress shall have power to enforce this 
article by appropriate legislation. 

(Article XIV.) 

Sec. 1. Ail persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citi- 
zens of the United States and of the State wherein they 
reside. No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens 
of the United States ; nor shall any State deprive any 
person of life, liberty, or property, without due process 
of law ; nor deny to any person within its jurisdiction 
the equal protection of the laws. 

Sec. 2. Representatives shall be apportioned among 
the several States according to their respective num- 



264 CONSTITUTION OF THE UNITED STATES. 

bers, counting the whole number of persons in each 
State, excluding Indians not taxed. But when the right 
to vote at any election for the choice of electors for 
President and Vice-President of the United States, 
Representatives in Congress, the Executive and Judi- 
cial officers of a State, or the members of the Legisla- 
ture thereof, is denied to any of the male inhabitants 
of such State, being twenty-one years of age, and citi- 
zens of the United States, or in any way abridged, ex- 
cept for participation in rebellion, or other crime, the 
basis of representation therein shall be reduced in the 
proportion which the number of such male citizens shall 
bear to the whole number of male citizens twenty-one 
years of age in such State. 

Sec. 3. No person shall be a Senator or Representa- 
tive in Congress, or elector of President and Vice-Pres- 
ident, or hold any office, civil or military, under the 
United States, or under any State, who, having pre- 
viously taken an oath, as a member of Congress, or as 
an officer of the United States, or as a member of any 
State legislature, or as an executive or judicial officer 
of any State, to support the Constitution of the United 
States, shall have engaged in insurrection or rebellion 
against the same, or given aid or comfort to the ene- 
mies thereof. But Congress may, by a vote of two- 
thirds of each House, remove such disability. 

Sec. 4. The validity of the public debt of the United 
States, authorized by law, including debts incurred for 
payment of pensions and bounties for services in sup- 
pressing insurrection or rebellion, shall not be ques- 
tioned. But neither the United States nor any State 
shall assume or pay any debt or obligation incurred 
in aid of insurrection or rebellion against the United 
States, or any claim for the loss or emancipation of 
any slave ; but all such debts, obligations and claims 
shall be held illegal and void. 

Sec. 5. The Congress shall have power to enforce, 



CONSTITUTION OF THE UNITED STATES. 2G5 

by appropriate legislation, the provisions of this ar- 
ticle. 

(Article XV.) 

Sec. 1. The right of citizens of the United States to 
vote shall not be denied or abridged by the United 
States, or by any State on account of race, color, or 
previous condition of servitude. 

Sec. 2. The Congress shall have power to enforce 
this article by appropriate legislation. 
12 



INDEX 









INDEX. 



Accused persons, rights of, 228-238. 

Admiralty jurisdiction, 195. 

Admission of States, 153, 154. 

Albany Congress, 33. 

Aliens, how they become citizens, 
112. 

Ambassadors, 181-184 ; cases affect- 
ing, 194, 198. 

Amendments to federal Constitution, 
58 ; to State constitutions, 58 ; the 
fifteen, 213-239. 

Annapolis Convention, 44. 

Appellate jurisdiction of federal 
courts, 193, 198-200. 

Appointments, by whom made, 175 ; 
mode of making, 176. 

Apportionment of representatives and 
taxes, 69, 71. 

Appropriations, 140. 

Aristocratic government, 7. 

Arms, the right to bear, 222. 

Army, power to raise and support, 
125; a restriction, 125; govern- 
ment of, 126 ; relation of the 
President and Congress to, 178, 
179. 

Arrest, freedom of congressmen from, 
86 ; a warrant necessary, 224. 

Assembly, right of, 219. 

Attainder, bills of, prohibited, 137, 
144; the Great Act of, 138. 

Attempts at union, 33. 

Attorney-General, 161, 171, 173. 

Authors, 114. 

B. 

Bail, 231. 

Bankruptcy, 110, 143. 



Bill of attainder, 137, 144 ; of rights, 

50,213,214. 
Bills of credit, 144. 
Bills, mode of passing, 98 ; how they 

become laws, 99. 

C. 

Cabinet, 170. 

Capitation-tax, 104, 133. 

Captures, 124. 

Cases under the Constitution, laws, 
and treaties, 193; affecting am- 
bassadors, other public ministers, 
and consuls, 194 ; of admiralty and 
maritime jurisdiction, 195; in 
which the United States is a 
party, 196 ; when State courts are 
not likelv to act with impartiality, 
196. 

Caucuses, importance of, 15. 

Caveat, 116. 

Ceded districts, 128. 

Charter governments, 23. 

Checks and balances of federal sys- 
tem, 203-211. 

Circuit courts, 188; jurisdiction of, 
199. 

Citizens, duties of, 11-16; privileges 
of, State, 150; United States, 151. 

Civil government, defined, 3. 

Civil-Service Commission, 177. 

Clerk of the House of Representa- 
tives, 92, 94. 

Coining money, 109. 

Colonies, 21; forms of government, 
22, 23 ; distinction between, 24 ; 
common characteristics, 25; rights 
of, 27 ; rights violated, 29-31 ; in- 
dependence declared, 32 ; relation 



270 



INDEX. 



to each other, 33; attempts at 
union, 33. 

Commander-in-chief of army and 
navy, 125, 178, 179. 

Commerce, under the Confederation, 
106 ; under the Constitution, 107, 
108 ; preferences prohibited, 134. 

Commissioner of Agriculture, 174. 

Common law, 27 ; suits at, 227. 

Confederation, Articles of, 38; dis- 
tinctive features, 39; defects, 40, 
103; disregard of national au- 
thority under, 42 ; inadequacy of, 
43; benefits secured, 44; steps to 
change, 44, 45. 

Congress, a, defined, 93. 

Congress, Albany, 33; Stamp Act, 
34; First Continental, 35; Second 
Continental, 37 ; of the Confeder- 
ation, 39, 40 ; compared with Par- 
liament, 60. 

Congress, legislative power vested 
in, 65, 102; relating to members, 
80-82, 86-89 ; rules of procedure, 
81 ; power to punish for contempt, 
83; meetings and adjournments, 
84,94; a quorum, 84; journal, 85; 
necessity of organization, 90 ; of- 
ficers of each House, 90-93; first 
meeting, 94; notifications, 95; 
President's message, 95 ; organiza- 
tion completed, 96 ; standing com- 
mittees, 96 ; mode of passing bills, 
98-100; powers, 58, 102-129, 153, 
156, 157; restrictions on, 131-141, 
206, 209; check upon other de- 
partments. 206-211. 

Congressional districts, 70. 

Constitution, defined, 55; written or 
unwritten, 55; changeable, 57. 

Constitution, the, formation of, 45- 
47; adoption of, 48; opposition to, 
49; first election under, 51 ; su- 
preme, 56; officers bound by oath 
to support, 57 ; amendments, 58, 
213-239; preamble, 60; cases un- 
der, 193. 

Constitutional Convention, 45; dis- 
sensions in, 47. 

Constitutions of States, 32; must 



yield to federal Constitution, 56; 
amendments, how made, 58 ; when 
submitted to Congress, 154; guar- 
antees under, 215. 

Consuls and their duties, 185. 

Continental Congress, 35-37. 

Contracts, the obligation of, 146. 

Copyright, 117. 

Counsel for defence, 235. 

Counterfeiting, 119. 

Court of Claims, 188; jurisdiction 
of, 200. 

Courts, federal, 188; powers of, 192- 
200 ; State, appeals from, 193 ; ter- 
ritorial and military, 201; power 
of Congress over, *122, 188, 207, 
210. 

Credit, bills of, 144. 

Crimes, authority of Congress over, 
118; legislative punishments for, 
prohibited, 137, 144 ; trial of, 201 ; 
rights and privileges of persons 
accused of, 228-238 ; infamous de- 
fined, 231. 

D. 

Debt, public, 103, 106, 239. 

Declaration of Independence, 31. 

Democratic government, 8. 

Department of State, 172; of the 
Treasury, 172 ; of War, 173; of 
Justice, 173 ; of the Navy, 174; 
of the Interior, 174; of Agricul- 
ture, 174. 

Departments of government, 61 ; re- 
lation to one another, 62, 100; a 
check upon each other, 203-211. 

Diplomatic agents, reception of, 181 ; 
rank of, 182; immunities and 
privileges, 183 ; duties, 184; cases 
affecting, 194. 

Direct taxes, 104, 133. 

District courts, 188; jurisdiction of, 
200. 

District of Columbia, 128. 

Due process of law, 238. 

Duties, defined, 105; power of Con- 
gress to levy, 103; States forbid- 
den to impose, 147. 

Dwelling, security of, 222. 



INDEX. 



271 



Election, of representatives, GO, 78, 
80 ; of senators, 73, 78, 80 ; power 
of Congress over, 76 ; of President 
and Vice-President, 161-166. 

Electors, presidential, bow appointed, 
162; a disqualification, 162; time 
of choosing and meeting, 163; 
certified lists of votes cast, 164; 
original design of choosing, 200. 

Electors, qualifications of, for mem- 
bers of House of Representatives, 
67, 68. 

Eminent domain, 226. 

Excise taxes, 105. 

Executive departments, 171-174. 

Executive power, in whom vested, 
159; restraints on, 206, 210. 

Exports, 134, 147. 

Ex post facto law, 139, 144. 

Evidence, accused persons not re- 
quired to give, 236. 

F. 

Fact, questions of, 228. 

Federal and State authority, 142, 143. 

Federal courts, 188-201. 

Felony, 119, 120. 

Fines, excessive, 237. 

First Continental Congress, 35. 

Foreign relations, 180-185, 208. 

Fugitive offenders, 152. 

Fugitives from service or labor, 152. 

G. 

Gold and silver, a legal tender, 145. 

Government, defined, 3 ; necessity 
of, 3 ; forms, 4-10 ; conditions nec- 
essary, 10-16; knowledge of our 
own, important, 17; must possess 
the means of enforcing obedience, 
42 ; departments, 61 ; checks and 
balances, 203-211. 

Government of the United States, 8, 
61 ; enumerated powers, 102, 143 ; 
restrictions on, 122, 131-141, 204, 
213-239. 

Grand jury, 229,231. 



H. 

Habeas corpus, writ of, 135 ; impor- 
tance of, 136 ; when it may be 
suspended and by whom, 136. 

High seas, 120. 

House of Representatives, GG ,• qual- 
ifications of electors for members, 
67, 68; officers, 90-92; revenue 
bills originate in, 99; when Presi- 
dent elected by, 165; restraints 
on, 205-208 ; sole power of im- 
peachment vested in, 21 1. 

I. 

Impeachment of public office^, 191, 
210 ; mode and effect of, 180, 211. 

Implied powers of Congress, 129. 

Imports, imposts, 105, 147. 

Imprisonment, relief from, writ of 
habeas corpus, 135, 136; giving 
bail, 232. 

Indian tribes, commerce with, 108. 

Indictment, 230. 

Indirect taxes, 104. 

Inferior tribunals, 122, 188. 

Inspection laws, 148. 

Insurrections and invasions, protec- 
tion guaranteed to States against, 
157. 

Inventions, 114. 

J. 

Jeopardy, twice in, 237. 

Journal of Congress, 85. 

Judges, appointment of, 189; term of 
office and compensation, 190, 191 ; 
removal from office, 191, 210. 

Judicial department, relation to oth- 
er departments, 62, 187 ; necessity 
of, 187 ; a check on other depart- 
ments, 207. 

Judicial powers of the United States, 
192-201. 

Jurisdiction, defined, 198 ; of the sev- 
eral courts, 198-201. 

Jury, grand, 229, 231 ; petit, 231 ; an 
impartial, 233. 

Jury trial, in civil cases, 226; in 
criminal cases, 227 



272 



INDEX. 



Lands, public, 38, 155. 

Law of nations, 119, 120; of the 
land, 238. 

Law, unconstitutional, 59 ; common, 
27; military and martial, 126, 201 ; 
ex post facto, 139 ; due process of, 
238. 

Laws, how made, 98-100 ; cases un- 
der, 193. 

Legal tender, only gold or silver to 
be made, 145. 

Legislative department, 64-77; re- 
lation of the President to, 100 ; re- 
striction on, 206-209. 

Letters patent, 115. 

Letters, transmission of, 113. 

Libel, defined, 217. 

Liberty of speech and debate, 87 ; 
of speech and press, 217. 

Libert v, personal, 135,136; religious, 
215." 

Life, liberty, and property, 238. 

Life, not to be twice in jeopardy, 237. 

M. 

Majority rule, 13 ; when a two-thirds 
is required, 82, 99. 

Maritime jurisdiction, 195. 

Marque and reprisal, letters of, 123. 

Martial law, 201. 

Measures and weights, 110. 

Message of President, 95. 

Military law, 126, 201 ; courts, 201. 

Militia, 127 ; the power of Congress 
over, 127. 

Monarchical government, 5 ; absolute 
or limited, 6; elective or heredi- 
tary, 7. 

Money, power to borrow, 103; coin- 
ing, 109; counterfeiting, 119. 

N. 

National authority, 51, 142, 143 ; bal- 
anced against states, 204. 

Nations, law of, 119,120. 

Naturalization, defined, 111 ; a mis- 
taken impression concerning, 111; 



how an alien may become a citi- 
zen, 112. 

Navigation, power of Congress to reg- 
ulate, 107. 

Navy, power to provide and main- 
tain, 126 ; government of, 126 ; re- 
lation of the President and Con- 
gress to, 178, 179. 

New States, admission of, 153, 154. 

Nobility, titles of, 139, 144. 

O. 

Oath of office, 57, 166. 
Obligation of contracts, 146. 
Officials, appointment of, 168, 175; 
salaries of some, 242. 



Pardons, 179, 212. 

Parliament, power over the colonies, 
21,25 ; compared with Congress, 60. 

Patents, 115 ; how to obtain, 116. 

Patriarchal government, 4. 

People of the United States, sover- 
eignty resides with, 48, 58,60; ac- 
countability of officials to, 208. 

Personal liberty, 135, 136. 

Petit jury, 231. 

Petition, right of, 219 ; present sys- 
tem of modern origin, 220 ; advan- 
tages and abuses, 231. 

Piracy, 119, 120. 

Postmaster-General, 161, 171. 

Post-office Department, 173. 

Post-offices and post- roads, 113 ; the 
establishment of, 113. 

Preamble of Constitution, 60. 

Presentments, 230. 

Presents, 140, 167. 

President, responsibility of, 159,171 ; 
qualifications, 159; term of office, 
160 ; manner of choosing, 161-166; 
commencement of term of office, 
166; oath of office, 166; compen- 
sation, 167, 191 ; powers and duties, 
169-186; message, 95; relation to 
legislation, 98-100 ; restrictions on, 
206-208, 210. 

President of Senate, 90, 164. 



INDEX. 



273 



Press, freedom of, 217 ; of recent ori- 
gin, 218. 

Privileges of members of Congress, 
86,87*, of citizens of States, 150; of 
citizens of the United States, 151. 

Property, private, 225, 238. 

Proprietary governments, 22. 

Provisional governments, 22. 

Public opinion, 13; lands, 38, 155 ; 
debt, 103, 106, 239 ; trial, 232. 

Punishments, for contempt of the au- 
thority of Congress, 83; legislative, 
prohibited, 137; for crimes,237, 238. 



R. 



Records of States, 150. 

Religious liberty, 215. 

Representatives, qualifications of, 67, 
68 ; apportionment, 69, 71 ; limita- 
tions in apportionment, 71 ; elec- 
tion, 75, 76, 80 ; vacancies, 77 ; a 
comparison, 77 , privileges, 86, 87 ; 
disqualifications, 89; not subject 
to impeachment, 210. 

Reprieves, 179. 

Republican government, 8 ; guaran- 
teed by Constitution to States,157. 

Revenue bills, 99. 

Revolution, the right of, 16. 

Right of assembly, 219 ; of petition, 
219; to bear arms, 222. 

Rights and privileges, 213-239. 

S. 

Salaries of some officers, 242. 

Searches and seizures, 221, 225. 

Second Continental Congress, 37. 

Secretarv of the Interior, 161, 171, 
174; of the Navv, 161,171,174; of 
State. 161, 171, 172 ; of the Treas- 
ury 161, 171, 172 ; of War, 161, 
171, 173. 

Self-government, local, 142, 143. 

Senate, 73 ; changes in, gradual, 74 ; 
meeting of, 95 ; officers and their 
duties, 90-92 ; when Vice - Presi- 
dent elected by, 166 ; functions in 
appointments and treaties,176,180 ; 
12* 



restrictions on, 205, 208, 209 : sole 
power to try impeachments, 211. 

Senators, how classified, 74 ; (qualifi- 
cations, 75; election, 75, 76; vacan- 
cies, 77 ; a comparison, 77 ; privi- 
leges, 86, 89 ; disqualifications, 89 ; 
not subject to impeachment, 210. 

Sergeant-at-arms, 92. 

Slander, defined, 217. 

Slave-trade, 132. 

Soldiers, quartering, 223. 

Speaker of the House of Representa- 
tives, 90, 91. 

Speech and debate, in Congress, 87. 

Speech and press, freedom of, 217. 

Stamp Act, 30. 

Stamp Act Congress, 34. 

Standing committees, 96 ; armies, 127, 
222. 

States, powers of, 143 ; prohibitions 
upon, 143-148; records of, 150; 
privileges of citizens, 150 ; admis- 
sion of, 153, 154 , a republican form 
of government guaranteed, 157 ; 
protection against invasion and do- 
mestic violence, 157 ; controversies 
between, 196; suits against, 197; 
balanced against the nation, 204. 

Succession to presidency, 161. 

Suits against States, 197, against the 
United States, 200; at common 
law, 227. 

Supreme Court, 188; jurisdiction of, 
198. 

T. 

Tariff, defined, 105. 
Tax, defined, 103 ; on tea, 31, 35. 
Taxation of colonies, 29-31, 35. 
Taxes, power of Congress over, 103 ; 

direct, 104, 133; indirect, 104. 
Territories, government of, 156, 201. 
Territory and other property, 128, 155. 
Theocratic government, 5. 
Titles of nobility, 139. 
Tonnage duties, 147. 
Treason, 120 ; wrongs perpetrated in 

the name of, 121 ; defined by the 

Constitution, 122; punishment of, 

122. 



274 



INDEX. 



Treaties, supreme, 56 ; how made, 
180, 208 ; cases under, 193. 

Trial, a speedv and public, 232 ; bv 
jury, 226, 227. 

Twice in jeopardy, 237. 

U. 

Unconstitutional law, 59. 
Union, attempts at, 33. 
Unreasonable bail, 231. 



Vacancies, in Congress, 77 ; in the 
office of President, 161 ; in other 
offices, 176. 

Verdict, 234, 238. 

Veto power, 98-100, 206. 

Vice - President, qualifications and 
term of office, 161 ; duty of, 161 ; 



manner of choosing, 162-166 ; im- 
peachment of, 210. 
Voters, qualifications, 67, 68. 

W. 

War, power of Congress in relation 
to, 123-127. 

Warrants, 224, 225. 

Weights and measures, 110. 

Western territory, 155. 

Witnesses, for prosecution, 234 ; for 
defence, 235. 

Writ of habeas corpus, 135 ; impor- 
tance of, 136; when it may be 
suspended, 136. 

Y. 

Yeas and nays, when entered on 
journal, 85, 99. 



THE END, 



DAVIS'S INTERNATIONAL LAW. 



Outlines of International Law, with an Account of 
its Origin and Sources, and of its Historical Devel- 
opment. By George B. Davis, U.S.A., Assistant 
Professor of Law at the United States Military 
Academy. Crown 8vo, Cloth, $2 00. 

The book is clear, comprehensive, and well up to the times. To 
my judgment, it is the best manual I have yet seen, and was very 
much needed. — Professor Henuy Coppee, Lehigh University. 

A valuable addition to the means of ready and intelligible infor- 
mation on subjects of jurisprudence which are of interest to tho 
general reader. . . . We know of no volume in which the reader can 
in so convenient a form and moderate compass find a more inviting 
introduction to these subjects, or the means of a fiuishing review of 
the entire field in the light of the most recent public events. ... It 
summarizes the law in a manner which the general reader will find 
very useful. — Christian Union, N. Y. 

Professor Davis has performed good service towards public edu- 
cation in undertaking such a needed, and in producing such a learned 
and well-arranged, book. — Boston Globe. 

It is a success, being comprehensive, clear, and compact in its style. 
— Literary World, Boston. 

It is logical and accurate to the last degree. For a concise state- 
ment of the leading principles it may be implicitly trusted.— Epoch, 
N.Y. 

It will throw a new and clear light on many historical events for 
those who were before unfamiliar with the law. — Boston Advertiser. 

It is a very clear and singularly interesting work on an important 
subject. — N. Y. Mail and Express. 

A most excellent hand-book of the principles of this science, suit- 
able for a text-book, and at the same time of marked interest to the 
general reader. ... A standard authority. — Boston Traveller. 

A valuable work, and sufficiently elementary in character to be 
within the reach of students and others who may desire to gain some 
knowledge of the general principles of the law of nations.— Boston 
Post. 

The merits of Professor Davis's book are clearness, readableness, 
exactness of statement, and abundance of historical illustrations.— 
The American, Philadelphia. 



Published by HARPER & BROTHERS, New York. 

&S* Harper & Brotiiek8 will send the above work by mail, postage prepaid, 
to any part of the United States or Canada, on receipt of the price. 



POLITICS FOR YOUNG AMERICANS. 



Politics for Young Americans. By Charles Nord- 
hoff. 16mo, Half Leather, 75 cents ; Paper, 40 
cents. 

It would be difficult to find, indeed, a safer guide for a youug man 
getting ready to " cast his first ballot."— Nation, N. Y. 

A short and very clear account of the reason of governments, 
the things which government can and ought to do, and the things 
which it cannot do and ought not to attempt, and the principles 
wliich ought to prevail in its treatment, by legislation or adminis- 
tration, of the things which properly come within its province. It 
is thus a treatise of political ethics and of political economy, and 
an excellent one.— N. Y. World. 

It is a book that should be in the hand of every American boy and 
girl. This book of Mr. Nordhoff 's might be learned by heart. ... It 
is a complete system of political science, economical and other, as 
applied to our American system.— N. Y. Herald. 

A book based upon an excellent idea, which is admirably carried 
out ill its contents. The book, though intended for the young, will 
by no means find its usefulness confined to that sphere. The ele- 
mentary knowledge of this volume, therefore, will prove of general 
value. We commend it to universal reading and study. — Saturday 
Evening Gazette, Boston. 

Here is a book which we wish could be put into the hands of every 
boy in the United States, and, for that matter, into the hands of a 
majority of the men, too; for of the first principles of political 
science which it lays down the majority of our voters have but a 
dim idea, if any at all. . . . Mr. NordholT's style is fresh, vigorous, 
and compact, and he has a knack of stating political and economic 
truths in such an epigrammatic way that they arc at once recognized 
and are easily retained. — San Francisco Ibst. 

Written in the lucid, compact, and weighty style which belongs to 
the pen of the author. Mr. Nordhoff has but few superiors in the 
use of a solid and forcible English. The great essentials of the 
American system of political', economical, and social life are em- 
braced in this work, and so treated as to make not only a readable, 
but also an exceedingly instructive book, well adapted to be useful 
to all classes. — Independent, N. Y. 

None can deny the practised ability, the pleasing perspicuity, and 
the general excellence of Mr. NordholT's work. — Christian Advocate, 
N. Y. 



Published by HARPER & BROTHERS, New York. 

13?" Harper & Brothers icill send the above work by mail, postage prepaid, 
to any part of the United States or Canada, on receipt of the price. 



